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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


& 


A  CONSTITUTIONAL 

HISTORY   OF   THE 

AMERICAN   PEOPLE 
1776     I  8  J  o 

BY  FRANCIS  NEWTON  THORPE 

Illustrated    with    Maps 

IN   TWO   VOLUMES 
VOLUME      ONE 


NEW    YORK     AND     LONDON 
HARPER    &    BROTHERS    PUBLISHERS 

1898 


Copyright,  .S98,  by  Harper  &  Brothers. 
Ali  rights  rescnid. 


'  •  .  .  .  The  form  of  government  which  prevails  is  the 
expression  of  what  cultivation  exists  in  the  population 
which  permits  it.  .  .  .  The  history  of  the  State  sketches 
in  coarse  outline  the  progress  of  thought  and  follows  at 
a  distance  the  delicacy  of  culture  and  aspiration." 

Emerson,  "Essay  on  Politics." 


PREFACE 


This  work  contains  the  evidence  of  chanQ-es — 
and,  it  is  believed,  of  progress — in  the  ideas  and 
opinions  which  the  American  people  have  held 
respecting  the  principles,  the  organization,  and 
the  administration  of  their  civil  institutions.  It 
is  a  record  of  the  evolution  of  government  in  this 
country  since  the  Revolution,  and  it  rests  upon 
authorities  hitherto  almost  entirely  disregarded. 
Constitutional  history  is  the  history  of  a  constitu- 
ency, which,  consciously  or  unconsciously,  is  ever 
striving  to  promote  its  own  welfare.  A  constitu- 
tional history  deals  primarily  with  persons,  not 
with  documents.  Laws  and  constitutions,  written 
or  unwritten,  are  the  evidence  of  the  efforts  of  a 
constituency  to  secure  its  ends.  The  develop- 
ment of  constitutional  government  consists,  essen- 
tially, in  the  definite  limitation  of  authority,  in 
order  to  accomplish  purposes  either  implied  or 
specified.  These  purposes  are  constant  demands 
upon  the  constituency,  but  the  means  adjudged 
reasonable  or  necessary  for  securing  them  are  as 
constantly  changing.  The  process  is  from  things 
to  persons ;  it  is  progressive  because  it  is  dynamic. 

V 


Preface 

No  one  can  go  over  the  evidence  which  this  work 
presents  and  have  his  confidence  shaken  in  the  fact 
that  American  civil  institutions  are  an  enduring 
monument  to  the  general  amelioration  of  the  con- 
ditions of  human  life  which  characterizes  modern 
civilization,  and  particularly  the  civilization  of  the 
last  century  and  a  half.  Yet,  when  we  reflect  on 
the  humanity  of  government  in  our  day, we  realize 
that  we  are  startlingly  near  the  age  that  interpreted 
criminal  law  to  be  for  the  purpose  of  exterminat- 
ing, not  of  reforming,  evil-doers — an  age  which  felt 
compelled  to  include  in  its  written  constitutions 
of  government  the  provision  that  excessive  bail 
should  not  be  required,  nor  excessive  fines  im- 
posed, nor  cruel  and  unusual  punishments  in- 
flicted. Public  opinion  to-day  is  the  living  law 
whose  mercy  seasons  justice. 

There  is  another,  perhaps  a  more  impressive, 
proof  of  the  general  amelioration  of  men,  man- 
ners, and  laws  —  namely,  the  gradual  growth  of 
the  national  idea — that  is,  the  gradual  disappear- 
ance of  isolated,  petty,  and  antagonistic  commu- 
nities, and  the  slow  but  sure  recognition  of  the 
presence  of  an  organic  and  moral  person  which 
we  call  the  Nation.  It  is  yet  but  a  partly  discov- 
ered country,  but  every  voyage  of  social  and  in- 
dustrial effort  uncovers  its  farther  shores.  Our 
constitutional  history,  like  that  of  every  other  peo- 
ple, is  a  history  of  the  evolution  of  religious,  of 
political,  and  of  industrial  rights.  The  steps  in 
all  this  progress  are  recorded  in  the  results  of 
many  struggles.     Among  these  are  the  struggles 

vi 


Preface 

for  the  extension  of  the  suffrage,  for  the  equita- 
ble apportionment  of  representation,  for  the  abo- 
lition of  discrimination  on  account  of  race  or  of 
previous  condition,  for  the  organization  of  sys- 
tems of  education  free  to  all,  for  the  separation 
of  the  state  from  questionable  practices,  and  for  the 
establishment  of  government  directly  upon  the 
will  of  the  people.  Incidental  to  these  processes 
has  been  the  slow  definition  of  the  functions  of 
the  state,  of  its  rights  as  a  moral  person  in  co- 
ordination with  the  rights  of  the  individual  and  of 
its  powers  and  their  fields  of  operation — executive, 
legislative,  and  judicial.  And,  finally,  the  evidence 
suggests,  what  seems  to  escape  the  attention  often- 
times not  merely  of  individuals,  but  also  of  masses 
of  men — that  government  is  made  for  man,  and  man 
not  merely  for  government. 

The  evidence  enables  us  to  deduce,  with  ap- 
proximate accuracy,  the  principles  on  which  gov- 
ernment in  America  rests.  The  peculiar  claim  of 
popular  government  to  universal  authority  is  its 
identification  with  the  great  principles  of  civiliza- 
tion. It  claims  to  be  founded  upon  the  rights  of 
man  and  the  principles  of  human  nature.  Popu- 
lar government  is  still  on  trial.  Its  principles  are 
simple  and  profound,  and  often  seem  lost  in  a  mass 
of  legislation,  judicial  decision,  executive  action, and 
popular  agitation.  It  is  possible  to  know  its  facts 
and  miss  its  principles.  If  the  evidence  here  pre- 
sented shall  lead  the  reader  to  the  consideration  of 
these  principles,  the  purpose  for  which  this  history 
has  been  written  will  have  been  accomplished. 

vii 


Preface 

The  principal  authorities  upon  which  the  evi- 
dence rests  are  the  laws  and  constitutions  of  the 
country,  and  the  journals,  proceedings,  and  debates 
of  constitutional  conventions,  -The  constitutional 
convention  ori2:inated  in  America,  and  is  a  recoor- 
nized  political  institution  in  modern  government. 
Perhaps  it  might  be  called  the  principal  contribu- 
tion of  America  to  the  political  agencies  of  the 
world.  It  is  a  grand  committee  of  the  constitu- 
ency authorized  to  submit  a  plan  of  government. 
Its  discussions  have  hitherto  been  neglected  as 
evidence  of  the  nature  of  American  civil  institu- 
tions and  of  their  trend  and  administration.  The 
traditional  distinction  between  State  administration 
and  national  government  has  done  much  to  estab- 
lish a  popular  notion  that  they  rest  on  different 
principles.  The  history  of  our  institutions  con- 
firms the  contrary  idea,  that  government  in  this 
country  rests  upon  principles  broad  and  general, 
and  that  the  idea  of  union  is  as  scientific  as  it  is 
legal. 

A  word  may  be  added  on  the  method  of  treat- 
ing the  subject.  Government  rests  on  ideas  and 
ideals.  These,  in  so  far  as  unfolded  at  the  organ- 
ization of  the  American  commonwealths  in  the 
eighteenth  century,  are  traced,  some  to  their  origin 
and  all  to  their  end,  in  the  earlier  chapters  of  the 
first  volume.  An  examination  of  the  constituency 
follows — the  people  in  their  local  civil  organiza- 
tion and  also  in  their  racial  and  social  relations. 
Our  dual  system  of  government — State  and  na- 
tional— sooner  or  later  compelled  issues  involving 

viii 


Preface 

the  question  of  sovereign t}?-.  In  one  form  the 
issue  is  stated  in  1798  and  compromised  in  1820. 
The  constituency  itself  is  constantly  changing 
and  rearranging  the  political  estate.  This  calls 
for  some  account  of  the  franchise — its  basis  and 
its  growth.  The  extension  of  the  franchise  to 
free  negroes  involves  the  fate  of  slavery.  This 
is  more  clearly  seen  about  the  time  of  the  Mis- 
souri Compromise.  From  that  time  immigration 
and  migration  into  the  West  rapidly  enlarge  the 
field  of  controversy,  and  more  sharply  define  the 
incongruous  elements  in  our  political  institutions. 
The  spirit  of  democracy  seizes  the  constituency, 
and  a  general  demand  is  heard  that  the  appointive 
system  be  abolished  and  the  elective  system  be 
substituted.  This  demand,  active  after  1820,  leads 
to  a  reorganization  of  government  in  America. 
The  process  characterizes  political  action  for  the 
next  thirty  years,  and  appears  on  party  records 
as  a  series  of  reforms  in  the  franchise,  in  repre- 
sentation, in  legislative  functions,  in  judicial  organ- 
ization, in  public  finance,  in  local  government,  and 
in  provisions  for  free  schools. 

By  1850  the  first  wave  of  population  had  passed 
across  the  continent  from  the  Atlantic  to  the 
Pacific,  and  the  public  domain  was  under  local 
civil  government.  The  complexity  of  the  changes 
wrought  during  seventy-five  years  is  suggested  by 
the  extension  of  the  Union  westwards,  from  thir- 
teen States  to  thirty-one  States  and  six  Territories. 
The  extension  was  in  two  columns,  a  Northern 
and  a  Southern,  whose  elemental  differences  were 

ix 


Preface 

clearly  defined.  Between  extremes  lay  a  border- 
land— the  Border  States.  It  is  necessary,  therefore, 
to  record  three  phases  of  civil  evolution,  and,  again, 
a  fourth  phase,  because,  in  the  far  West,  men  of 
the  North,  of  the  South,  and  of  the  Border  States, 
united  to  found  the  first  commonwealth  on  the 
Pacific  coast.  The  nature  of  the  civil  process  dur- 
ing all  these  years  is  best  understood  by  examin- 
ing somewhat  in  detail  the  work  of  constituencies 
in  the  North,  in  the  South,  in  the  East,  in  the 
West,  and  at  the  Border.  This  examination  is 
begun  in  the  first  volume  and  is  continued  in  the 
second.  The  time  is  from  1845  to  1850,  and  the 
constituencies  are  Louisiana,  Kentucky,  Michigan, 
and  California.  The  principles  of  government  in 
America  are  here  again  examined,  and  the  ex- 
perience of  more  than  a  half-century  enables  the 
people  to  apply  these  principles  in  new  directions, 
and,  sometimes,  in  new  ways.  America  in  1850 
differs  from  America  in  1776.  The  concept  of  the 
State  and  its  functions  has  greatly  changed.  Civil 
relations  are  seen  in  a  new  light.  Citizenship  is 
defined  anew.  The  co-ordinate  branches  of  gov- 
ernment are  conceived  not  only  under  revised 
relations,  but  as  under  a  stricter  accountability  to 
the  people.  Representative  government  sits  more 
firmly  in  its  continental  seat;  the  anxieties  and 
strivings  of  the  early  years  of  the  republic  are 
gone ;  the  people  seem  not  only  poised,  but  ag- 
gressive and  almost  proselyting  in  their  political 
confidences.  The  democratic  spirit  has  permeated 
the  land — local  government  in  towns,  cities,  and 


Preface 

counties  feels  its  power.  Democracy  has  so  re- 
vised its  ideals  that  it  seems  to  have  passed  through 
a  peaceful  revolution.  The  details  of  this  revolu- 
tion are  recorded  in  the  later  chapters  of  the 
second  volume.  An  examination  of  the  evidence 
there  presented  shows  the  truth  and  the  insight 
of  Emerson's  observation,  that  society  is  ever  in  a 
state  of  flux.  Constitutions  and  laws,  usually 
placed  as  permanent  landmarks  on  the  civil  es- 
tate, appear  and  disappear  like  the  species  in  the 
organic  world.  Even  our  constitutions  of  govern- 
ment prove  the  law  of  evolution. 

Many  concepts  of  the  Fathers  have  been  re- 
vised ;  some  have  been  abandoned.  It  is  a  wise 
generation  that  knows  itself  and  its  own.  From 
the  evidence  presented  in  these  volumes  it  must 
be  admitted  that  the  changes  wrought  in  Ameri- 
can civil  life  during  these  seventy-five  years  indi- 
cate that  the  American  people  became  liberal  and 
altruistic  as  they  became  a  power  among  the  na- 
tions of  the  world,  and  that  our  constitutional  his- 
tory is  of  a  constituency  that  has  grown  humane 
as  it  has  become  conscious  of  its  responsibilities. 


CONTENTS 


CHAPTER    I 
THE    STATE 

PAGE 

Two  large  processes  to  be  worked  out  in  the  evolution  of 

democracy  in  America i 

The  forerunners  of  representative  government  in  America    .  2,  3 

Racial  influences  on  the  State 3 

Democracy  in  America  a  resultant 4 

Government  a  problem  of  adjustments 5 

Labor  dictates  in  the  evolution  of  democracy 6 

Character  of  the  Revolution  of  1776 7 

The  blending  of  industry  and  politics 8 

Politics  vs.  Industry 9 

The  age  of  discontent  in  democracy 10 

The  tests  of  democracy 11 

The  demands  put  upon  it 12 

The  ultimate  in  democracy 13 

The  tests  of  administration 14 

Democracy  defined 15 

Its  principles,  according  to  Webster 16 

Education  the  guardian  of  public  safety 17 

The  seventeenth  and  eighteenth  centuries  compared     ...  18 
True  character  of  the  democracy  of  the  eighteenth  century 

now  better  understood 19 

The  phases  of  democracy  in  its  evolution 20 

Sequence  of  political  aspirations 21 

The    transition,  in    this   country,   from    ancient    egoism    to 

modern  altruism 22 

Development  of  constitutional  government  in  America     .     .  23 

Theories  and  definitions  set  forth 24 

Conspicuous  omissions  in  the  national  constitution     ...  25 

xiii 


Contents 

FAGB 

Successive  groupings  of  civil  interests 26 

The  altruism  of  democracy 27 

Political  campaigns — the  organs  of  reform,  change  the  form 

of  the  State 28 


CHAPTER   II 

THE  FORM  OF  DEMOCRACY  IN  THE  EIGH- 
TEENTH   CENTURY 

In  the  closing  years  of  the  seventeenth  century  America  gave 
little  promise  of  becoming  a  continent  of  common- 
wealths      29 

Authorities  for  opinions  respecting  the  evolution  of  govern- 
ment in  the  United  States 29-32 

State  of  America  in  1700 30-33 

Forces  contending  for  supremacy 32 

The  survival  of  free  institutions 33 

Birth  of  a  continental  spirit  in  America 34 

Forebodings  of  the  Revolution 35 

The  struggle  between  absolutism  and  individualism     ...  36 
The    American    constitutions    the    slow   product   of   expe- 
rience   37.  38 

Montesquieu's  influence  in  America 39 

Blackstone's  influence 40 

Lowell's  estimate  of  Voltaire's  influence 41 

Franklin's  influence 42 

Jefferson  and  the  Rights  of  Man 43 

The  American  Revolution  reconstructed  the  theory  of  the 

State 44 

Legal  fictions  adopted  as  dynastic  facts 45 

The  new  constitutions  were  experiments 46 

Concepts,  old  and  new,  of  American  institutions 47 

The  two  ideas  at  the  basis  of  American  political  institutions  : 

natural  rights  and  the  social  compact 48 

The    great    American     Bill    of    Rights    drawn    by    George 

Mason 49 

Applications  of  the  doctrine  of  natural  rights 50 

The  struggle  for  trial  by  jury 5'.  52 

Christian  doctrine  in  the  early  constitutions 53-54 

Liberality  of  Vermont  respecting  other  than  the  white  race  .  54 
Virginia  and  New  England  the  parents  of  constitutions  in 

the   West 55 

xiv 


Contents 

PAGE 

The  guarantee  of  rights 56 

Reforms  and  new  precedents 57 

Effort  to  make  constitutional  provisions  permanent     ...  58 

Constitutions  evolving  into  codes 59 

CHAPTER   III 

THE  ORGANIZATION  OF  GOVERNMENT  IN  THE 
STATES 

Disqualification  of  non-church  members 60 

Social  distinctions 61 

Constitutions  change  most  in  times  of  peace 62 

How   administrative   measures  may  become  provisions   in 

bills  of  rights 63 

The  States  were  making  the  first  attempt  in  history  to  define 

civil  functions  by  means  of  a  written  constitution  ...  64 

English  and  American  legislative  systems  compared     ...  65 

The  difficulties  in  fixing  a  basis  of  representation     ....  66 

Conservatism  of  early  democracy 67 

The  qualifications  of  members  of  the  Assembly    .     .     .68,  70,  71 

Legislative  procedure  borrowed  from  England 71 

The  test  of  sovereignty 72 

State  and  national  sovereignty 73 

John  Adams,  the  father  of  the  public  school 74 

First  limitation  of  the  power  of  the  Legislature 75 

The  most  artificial  part  of  the  system,  the  Senate     ....  76 

The  qualifications  of  senators 77,78,79 

Senatorial  apportionment 80 

Characters  of  the  early  Senate 81 

The  Senate  a  discovery  in  politics 82 

Qualifications  of  the  governor 82,  83 

Popular  distrust  of  executive  power 84 

The  first  commonwealth  governors 85 

Their  obscure  functions 86 

Dignity  attached  to  the  office 87 

The  executive  council 88 

Organization  of  the  courts 89 

The  golden  age  of  litigation 90 

Complications  of  early  legal  practice 91 

Slavery ;  nationality 92 

Qualifications  of  the  electors 93,  94,  95.  96 

The  landless  man 97 

XV 


Contents 

PAGE 

The  initiative  in  constitutional  reforms 98 

Individualism  dominates  politics 99 

Permanency  of  the  ancient  landmarks 100 

CHAPTER   IV 

TRANSITION   TO   INDEPENDENT   STATES 

The  colonization  of  America  proceeded  according  to  feudal 

notions loi 

Representative  government  in  America  incident  to  the  con- 
ditions of  colonial  life 

Representative  institutions  prompted  by  the  love  of  gain     . 

The  democratic  tendency  of  colonial  life 

Conflicting  notions  concerning  representation  in  early  colo- 
nial times 

Fictitious  analogies 

Formation  of  two  legislative  chambers 

Spread  of  the  democratic  spirit  over  America 

Birth  of  the  American  legislature 

Government  not  directly  founded  on  the  people 

How  the  colonies  became  States 

The  procedure  abnormal 

Congress  advises  the  organization  of  independent  State  gov- 
ernments       113 

New  Hampshire 113,114 

South  Carolina 115,116 

Virginia 117,  118 

New  Jersey 118 

Delaware 119 

Pennsylvania 120 

North  Carolina 121 

Georgia 122,123 

New  York 123,124,125 

Vermont 126,127 

Connecticut 128 

Rhode   Island 129 

Massachusetts 130,  131,  132 

CHAPTER  V 

THE  CONSTITUTIONAL  ELEMENTS 

Virginia  removes  the  last  obstacle  to  the  admission  of  Ken- 
tucky   133 

xvi 


02 

03 

04 

05 
06 

07 
08 
09 
10 
1 1 
12 


Contents 

PAGE 

The  Kentucky  conventions  of  1792  and  1799 134 

Beginnings  of  Tennessee 135 

The  State  of  Franklin 136 

The  Tennessee  Convention  of  1796 137 

Eminent    personages    in    the   eighteenth    century    conven- 
tions     138,139 

Codes  and  constitutions  composite  in  character ;  interstate 

influence 140 

The  national  constitution  largely  founded  on  State  laws  .     .  141 

Derivative  features 142 

The  national  and  the  State  constitutions  form  an  organic 

whole 143 

The  Ordinance  of  1787 144 

Analysis  of  its  provisions 145.  146,  i47 

Provision  for  the  future 148 

The  territory  southwest  of  the  Ohio 149 

North  Carolina  imposes  a  permanent  condition  upon  it  .  .150 
Readoption  of  the  ordinance  by  the  first  Congress  .  .  .  -151 
Admission    of  Vermont ;   organization   of  the  Territory  of 

Indiana 152 

The  country  between  Georgia  and  the  Mississippi  River  .     .153 

Organization  of  the  Territory  of  Mississippi 154 

Robert    Grey,    captain    of    the    ship    Columbia,    discovers 

Oregon 155 

The  Indian  lands  an  exception  to  the  law  of  civil  govern- 
ment    156 

The  Indian  tribes  bar  the  way  to  the  West 157 

The  three  lines  of  immigration  to  the  West 158 

State  of  the  country  in  1800 158-159 

The  fundamental  idea  was  that  property  is  the  basis  of  gov- 
ernment   160 

CHAPTER  VI 
THE  FIRST  STRUGGLE  FOR  SOVEREIGNTY 

No  American  constitution  has  defined  sovereignty    ....  162 

Strong  and  weak  elements  in  the  States 162,  163 

Efforts  to  formulate  a  federal  union 163 

The  articles  of  confederation  on  the  circuit 164 

History  of  the  phrase,  "free,  sovereign,  and  independent"  164,  165 
Sovereignty  discussed  in  the  Convention  of  1787  ....  166 
Remarks  of  Hamilton,  King,  Gerry,  and  Ellsworth  .     .     167,  168 

xvii 


Canients 


I'AGE 


Residuary  sovereignty  and  popular  sentiment 169 

Hostility  of  the  States  to  the  new  government 170 

Jefferson's  definition  of  political  parties  in  1798 171 

Party  material  in  the  country 172 

Feebleness  of  the  national  idea 173 

The  power  of  the  rising  West 174 

What  the  West  thought  of  the  East 175 

The  Supreme  Court  declares  for  national  sovereignty  .     .     .176 

The  States  set  the  decision  aside 177 

The  Constitution  amended,  accordingly,  1798 178 

Jeflerson  organizes  the  Democratic  party 179 

His  political  methods  and  his  lieutenants 180 

The  alien  and  sedition  laws  force  a  crisis 181 

Character  of  these  laws  ;  their  reception  by  the  country  .     .  182 

The  coming  of  Clay 183 

The  Kentucky  resolutions 183 

The  Virginia  resolutions 184 

Examination  of  them 185 

The  resolutions  before  the  States 186 

Madison  makes  the  argument  for  State  sovereignty  .     .     .     .  187 
Nullification;  popular  interpretation  of  federal  powers     .     .188 

The  "  Doctrine  of  '98  "  wins  in  the  election  of  1800  ....  189 

A  new  party  in  power 190 

CHAPTER  VII 

THE  POLITICAL  ESTATE   AT  THE   OPENING 
OF  THE  NINETEENTH  CENTURY 

A  government  must  be  judged  by  the  condition  of  the  peo- 
ple who  support  it 191 

New  Hampshire  inaugurates  reform  in  the  franchise  by 
adopting  persons  instead  of  property  as  the  basis  of  gov- 
ernment    192 

Qualifications  of  the  voters  in  New  England  in  the  eighteenth 

century 193,  194 

The  franchise  in  New  York 195 

The  four  great  districts  of  New  York  State 196 

The  franchise  in  New  Jersey  and  Pennsylvania 197 

In  Delaware,  Maryland,  and  Virginia 198 

In  North  Carolina  and  South  Carolina 199,  200 

In  Georgia,  Kentucky,  and  Tennessee 201 

In  Vermont 201-202 

xviii 


Contents 

PAGE 

Religious  qualifications 202 

Their  disappearance 203 

Causes  of  this 204 

Opinion  of  non-churchmen 205 

The  free  person  of  color 206 

Negro  emancipation  discouraged 207 

The  free  negro  in  the  North 208 

The  State  not  conceived  as  altruistic 209 

The  rising  discontent 210 

CHAPTER  VIII 
THE  FIRST  MIGRATION  WEST 

The  fireside  stories  of  the  Northwest 211 

Settlement  of  the  Triangle 212 

The  approaches  to  the  new  Northwest 213 

Two  streams  of  population  converging  upon  the  Chautauqua 

country 214 

William  H.  Seward,  the  Holland   Land  Company,  and  the 

settlers  on  its  lands 215 

Trade  and  travel  on  Lake  Erie 216 

Smuggling  and  the  embargo 217 

The  home  of  a  pioneer 218 

Early  industries  in  the  Chautauqua  country 219 

On  the  circuit 220 

Presbyterians  and  Methodists 221 

The  frontier  store 222 

Physicians  and  school-masters 222,  223 

The  first  court 223 

The  first  mails  from  Buffalo  westward 224 

Child  life 224 

Politics  and  religion 225 

Social  distinctions  on  the  frontier 225,  226 

Slavery  in  the  Northwest 226 

Purchase  of  Louisiana 227 

The  purchase  changed  the  history  of  the  United  States  .  .  228 
Organization  of  the  Territory  of  Ohio  and  first  provision  for 

free  public  schools 229,  230 

Territory  of  Michigan  and  of  Illinois  organized 231 

Congress  prescribes  a  property  qualification  for  voters  .  .231 
Indian  war  on  the  frontier  ;  Harrison  and  Jackson   ....  232 

The  barrier  to  the  West  removed 233 

Influx  of  immigrants  ;  Alabama  and  Mississippi  organized     .  234 

xix 


Contents 

I' AGE 

Four   new  States — Indiana,   Mississippi,   Illinois,  Alabama ; 

Louisiana;  Missouri 235 

Maine,  Arkansas  ;  the  United  States  takes  military  possession 

of  Florida 236, 237 

Admission  of  Missouri 237 

All  territory  east  of  the  Mississippi  organized  under  local 

civil  authority 238,  239 

CHAPTER   IX 

FROM  THE  ALLEGHANIES  TO  THE   MISSIS- 
SIPPI 

The  advancing  frontier  in  1800 240 

Who  shall  control  the  channels  of  commerce? 241 

The  outposts  of  the  country  in  1800 242 

Louisiana  an  unknown  land 243 

Shall  the  Ordinance  of  1787  be  repealed? 244,245 

Objections  to  the  admission  of  Louisiana 246 

Organization  of  the  Territories  of  Orleans  and  Louisiana     .  247 

The  new  Missouri  Territory 248 

State  making,  Indiana 249 

Illinois 250 

Extension  of  the  Ordinance  of  1787 251 

The  Missouri  controversy 252 

View  of  the  country  in  1820 253 

Florida  purchased 254 

What  is  the  western  boundary  of  the  United  States?     .     .     .  255 

Changes  in  Michigan  Territory 256 

The  boundary  commissions  of  1822 257 

Independence  of  Texas 258 

The  organization  of  new  Territories  and  States  keeps  pace 

with  the  movements  and  increase  of  population     .     258,  259 

The  founding  of  Chicago 259,  260 

The  Indian  tribes  and  the  immigrants 261 

New  men  and  new  public  issues 262 

Extension  of  the  franchise 263 

The  epoch-making  West 264 

Homeric  quality  of  life  on  the  frontier 265 

The  East  and  the  West  view  the   national  government  in 

different  lights 266 


Contents 

CHAPTER   X 
FEDERAL  RELATIONS  — MISSOURI 

PAGE 

The  guarantee  of  property  rights  in  the  treaty  of  1803  .     .     .  267 
Critical  application  of  the  guarantee  in  the  request  of  Mis- 
souri for  admission  into  the  Union 268 

Tallmadge    of    New    York    proposes    a    clause    restricting 

slavery 269 

Has  Congress  the  power  to  restrict  ? 270 

Is  slavery  detrimental  to  a  State  ? 271 

What  is  a  republican  form  of  government  ? 272 

Some  provisions  in  the  Constitution  not  applicable  to  new 

States 273 

Difference  between  migration  and  importation 274 

A  blow  for  emancipation 275 

The  attack  on  slavery  an  attack  on  property 276 

Proposed  line  of  demarcation  for  slavery 277,  278 

Popular  excitement  over  the  Missouri  question 279 

A  new  element  in  the  question  ;  Maine 280 

The  Maine-Missouri  bill  in  the  Senate 281 

Slavery  restriction  (the  Taylor  amendment)  discussed  in  the 

House 282 

The  two  Houses  in  conference 283 

Prospect  of  disunion 284 

Stubborn  fight  for  free  soil 285 

Thomas  H.  Benton  the  author  of  the  objectionable  clause 

in  the  Missouri  constitution 286 

Its  conflict  with  the  national  Constitution 287 

Can  Congress  prescribe  conditions  for  a  new  State?     .     .     .  288 
Let  the  Supreme  Court  decide  doubtful  questions    ....  289 

Who  are  citizens  ? 290 

Increase  in  the  number  of  free  persons  of  color 291 

Can  a  new  State  exclude  free  negroes? 292 

They  are  not  citizens  in  the  meaning  of  the  Constitution.     .  293 

The  assertion  controverted 294 

No  discrimination  in  the  national  Constitution 295 

Is  Missouri  a  Territory  or  a  State  ? 296,  297 

The  imposition  of  a  condition,  by  Congress,  on  a  State  con- 
trary to  precedent 298 

What  privileges  have  black  citizens  ? 299 

Clay's  compromise 300,  301 

General  Pinckney's  testimony  to  the  meaning  of  the  fourth 

article  of  the  Constitution 302 

xxi 


Contents 

PAGB 

Firm  stand  of  the  restrictionists 303 

Shall  the  electoral  vote  of  Missouri  be  counted?  .     .     .     303,  304 

Tumult  and  confusion  in  the  House 305,306 

Clay's  peaceful  efforts 307 

The  question  at  the  root  of  the  Missouri  controversy      .     308,  309 

Powers  of  Congress 310,311 

Arguments  against  them  and  for  them 311,312,313 

Opinions  of  John  Jay  and  Daniel  Webster 313,314 

Triumph  of  the  "  Doctrine  of  '98  "  in  the  settlement  of  the 

Missouri  controversy 315 

CHAPTER   XI 

BEYOND  THE   xMISSISSIPPI 

The  Arkansas  constitution  of  1836 316,317 

The  Michigan  constitution  of  1835 318 

The  Indian  Country 319 

Wisconsin  organized 320 

Iowa  organized 321 

Westward  movement  of  the  frontier 322 

The  era  of  internal  improvement  begins 323 

Abraham  Lincoln's  first  political  circular  (internal  improve- 
ments, banking,  schools)   324-328 

The  demands  of  the  West 329-330 

His  second  circular 330,  331 

The  State  mortgaged  for  internal  improvements  .     ....  331 

Collapse  and  repudiation 332 

The  American  people  in  1830 333 

The  effects  of  the  panic  of  1837 334 

Mexico,  Texas,  and  the  United  States 335 

The  South  eager  to  recognize  Texan  independence  ....  336 

Opposing  sentiment  in  the  country 337-340 

State  sovereignty  notions  in  Maine  and  Massachusetts  drawn 

out  by  the  boundary  dispute  with  Great  Britain     .     340,  341 
Treaties  with  Russia  and  Mexico  ;  immigration  to  Texas  .     .  342 

Texas  and  its  constitution 343,  344 

Wisconsin  admitted 345 

California 345,  346 

Organization  of  Minnesota  and  Oregon 347 

Organization  of  Utah  and  New  Mexico 348 

The  changes  of  three-quarters  of  a  century,  1776-1850  .     .     .  349 

Foreign  immigration 350 

xxii 


Contents 

PAGE 

Building  up  the  cities  of  the  West 351 

The  homes  of  the  people 352 

The  churches  and  the  great  preachers 353 

Character  of  the  population 354 

Slave  soil  hemmed  in  by  free  labor 355 

CHAPTER   XII 

A  PEOPLE  WITHOUT  A  COUNTRY 

The  oppressors  and  the  oppressed 356 

The  false  tenets  of  American  democracy 357 

When  the  slave  became  a  political  factor 358 

The  anomaly  of  free   negroes  and  negro  slaves  in   a  de- 
mocracy   359 

Free  negroes  in  New  England 360 

The  penalties  of  emancipation 361 

Laws  keeping  free  negroes  in  intellectual  bondage   ....  362 

Rapid  increase  of  free  negroes 363 

Relative  increase  of  hostile  legislation 364 

Ostracism  of  the  free  negro  North  and  South 365 

His  condition  often  worse  than  that  of  the  slave 366 

Flight  of  the  free  negro  into  the  wilderness 367 

The  free  negro  a  standing  incentive  to  servile  insurrection    .  368 

Free  negroes  treated  as  runaway  slaves 369 

Case  of  the  slave  "  Isaac  " 370 

New  York  admits  free  negroes  to  the  franchise  in  182 1     .     .371 

Reason  for  this  liberal  innovation 372 

Exclusion     of    the    class    from    the    schools,    North    and 

South 372,  373 

Prudence  Crandall's  free  school 373,  374 

Discrimination  in  Ohio 375 

Change  of  public  opinion  in  Ohio 376 

California  and  the  free  negro  ;  resolutions  of  the  States     377,  378 

Foreign  immigrants  cow  the  negro  voter 379 

The  underground  railroad 380 

Hatred  of  the  negro  in  the  North 381,  382 

He  was  classed  with  the  criminal  population    .     .     .     .     .     .  383 

Admitted  to  the  church,  excluded  from  the  industries  .     .     .  384 

The  struggle  for  free  public  schools 385 

Slavery  muzzles  free  speech 386 

The  cost  of  slavery 387 

The  new  West  frowns  on  the  free  negro 388 

xxiii 


Contents 

PACE 

The  migration  of  the  free  negro  follows  the  law  of  climate  in 

spite  of  acts  of  legislatures 389 

Selfishness  at  the  bottom  of  racial  hostility 390 

Race  prejudice  in  California  in  1849 391 

The  States  on  the  threshold  of  division  along  color  lines, 

in  1850 392 

Northern  ameliorative  measures  for  the  negro 393 

They  were  dictated  by  self-interest 394 

Exigencies  compel  concessions 395 

Questions  pressing  to  the  front  whenever  a  Territory  seeks 

admission  into  the  Union 396 

Sources  of  our  knowledge  of  the  evolution  of  the  American 

constitutions 397 

Typical  States,  North,  South,  East,  and  West 398 

Collapse  of  slaveocracy  before  free  labor 399 

CHAPTER   XIII 

DEMOCRACY   IN   A   GULF   STATE;  1845— LOUISI- 
ANA 

Reforms  demanded  in  Louisiana 400 

Character  of  the  population 401 

The  foreign-born  element 402 

Position  of  foreigners  in  slave  States 403 

What  influences  dictated  the  qualifications  of  the  voter?  .     .  404 

Representation  on  the  federal  principle 405 

The  economic  aids  to  good  gov^ernment 406 

Sovereignty  not  in  the  people 407 

The  question  of  residence 408 

Native-Americanism 409 

A  confusion  of  precedents 410 

The  rule  of  wealth 411 

The  question  of  a  property  qualification 412 

Residential  qualifications  for  office 413 

Discrimination  against  the  citizens  of  other  States   ....  414 

Universal  citizenship 415 

Immigration  to  the  State  must  be  encouraged 416 

The  commercial  importance  of  New  Orleans 417 

A  State  must  judge  of  its  own  best  interests 418 

Citizens  without  naturalization 419 

The  dangers  of  Native-Americanism 420 

Evil  example  of  the  Hartford  Convention 421 

xxiv 


Contents 

PAGE 

New  elements  of  political  strife 422 

Liberal  principles  of  our  early  statesmen 423 

Many  of  the  "  fathers  "  were  alien  born 424 

Judah  P.  Benjamin  warns  the  State  against  the  abolitionists  .  425 

Slavery  excluded  foreign  immigration 426 

Cosmopolitan  character  of  Louisiana 427 

The  doctrine  of  universal  suffrage  exploded 428 

Shall  man  or  property  vote  ? 429 

Increase  the  number  of  freeholders 430 

CHAPTER   XIV 

THE   BASIS  OF    REPRESENTATION 

Shall  the  laboring  man  be  allowed  to  vote? 431 

Evil  of  an  extended  franchise  portrayed 432 

Is  not  a  property  qualification  for  the  voter  a  detriment  to 

the  State  ? 433 

The  power  of  Virginia  as  a  precedent 434 

The  South  and  its  antagonistic  population 435 

Evils  of  the  single  district  system  pointed  out 436 

Where  the  federal  number  failed 437 

The  city  vote  vs.  the  country  vote 438 

Jefferson's  Notes  on  Virginia  cited  .• 439 

Influence  of  Jefferson's  ideas 440 

The  congested  power  of  large  cities 441 

Political  power  should  be  diffused  through  the  State  .     .     .  442 

The  negro  beyond  the  pale  of  politics 443 

The  equities  of  representation 444 

The  federal  basis  and  agricultural  interests 445 

Relative  wealth  of  the  cities  and  the  country 446 

In  restraint  of  municipal  power 447 

Instances  of  restraint  in  other  States 448,449 

Fact  and  fiction  count  in  making  a  State  constitution  .     .     .  450 

Native-Americanism  and  the  naturalized  citizen 451 

Right  of  a  State  to  discriminate  among  its  citizens  ....  452 

Supremacy  of  Congress  and  the  Constitution 453 

As  to  national  citizenship 454 


Contents 


CHAPTER   XV 

ELEMENTS  OF   DISCORD   IN   THE   COMMON- 
WEALTH 

PAGE 

Why  the  governor  should  be  native  born 456 

The  American  theory  of  citizenship 457 

Interstate  rights  of  citizens 458 

Monroe,  Madison,  and  Marshall  on  citizenship 459 

The  foreigner  in  Louisiana 460 

Free  colored  persons  and  the  slave  States 461 

Van  Buren  and  Tompkins  on  citizenship 462 

Politics  and  constitutional  provisions 463 

Danger  from  northern  abolitionists 464 

Did  the  national  Constitution  intend  to  include  other  than 

the  white  population  in  its  provisions? 465 

The  slave-holding  concept  of  a  commonwealth 466 

How  can  two  antagonistic  populations  be  represented?  .     .  467 

Slavics  vs.  white  servants 468 

Difficulties  in  apportioning  representation 469 

Slavery  first  disappeared  in  the  cities 470 

The  three  methods  of  apportionment 471 

Danger  of  antagonism  to  slavery 472 

Town  t/.f.  country 473 

The  equilibrium  sought 474 

Slaves  both  property  and  persons .     .  475 

Slaves  vs.  poor  whites  as  elements  in  the  population     .     .     .  476 

Ancient  privileges  of  slaves  in  America 477 

Slaves  not  political  persons 478 

Can  the  federal  basis  be  applied  in  a  commonwealth?  .     .     .  479 

Shall  Louisiana  condemn  slavery? 480 

Massachusetts  protests  against  slave  representation  in  the 

Union 481 

Power  of  a  State  over  its  own  institutions 482 

How  shall  representation  be  equalized? 483 

Impending  political  changes 484 

Every  man's  hand  against  the  negro 485 

Slavery  makes  equitable  representation  impossible  .     .     485,486 


Contents 


MAPS 

Map  showing  the  English  Colonies  in  North  America ;  re- 
drawn from  the  map  published  according  to  Act  of 
Parliament  June  lo,  1775,  by  R.  Sayer  and  J.  Bennett, 
No.  53  in  Fleet  Street  (from  a  copy  in  the  Pennsylvania 

Historical  Society) Facing  p.     26 

Map  of  the  United  States  in  1790,  showing  civil  divisions 
and  distributions  of  population  ;  compiled  from  the  cen- 
sus and  the  statutes  at  large Facing  p.  150 

Map  of  the  United  States  in  1796,  showing  the  Wilderness 
Roads ;  redrawn  from  Wilkinson's  map  published  in 
London,  June  2, 1794,  with  the  roads  added  from  various 

authorities Facing  p.   158 

Map  of  the  United  States  in  1800,  showing  civil  divisions 
and  distributions  of  population  ;  compiled  from  the  cen- 
sus and  the  statutes  at  large Facing  p.  212 

A  similar  map  for  1810 Facing  p.  232 

A  similar  map  for  1820 Facing  p.  252 

A  similar  map  for  1830 Facing  p.  260 

A  similar  map  for  1840 Facing  p.  332 


A   CONSTITUTIONAL    HISTORY    OF   THE 
AMERICAN    PEOPLE 

VOL.   I 


A  CONSTITUTIONAL   HISTORY   OF  THE 
AMERICAN    PEOPLE 


CHAPTER   I 
THE     STATE 


In  the  evolution  of  democracy  in  America  two 
large  processes  were  to  be  worked  out — the  utili- 
zation of  the  resources  of  nature  and  the  organ- 
ization of  civil  affairs  by  means  of  a  government 
adapted  to  such  a  country  as  ours.  The  indus- 
trial process  has  been  co-ordinated  with  the  civil, 
and  democracy  in  America  is  the  result.  In  Eu- 
rope, since  the  heraldic  summons  of  the  Refor- 
mation, which  came  hard  after  the  Columbian 
voyages,  and  in  America,  with  the  coming  of  the 
seventeenth  century,  the  principles  of  government 
have  shown  a  democratic  application.  It  might 
be  expected  that  Europe  would  anticipate  Amer- 
ica ;  that  in  the  deep  mine  of  Indo-European  ex- 
perience there  should  be  worked  out  some  of  the 
principles  of  civil  society  as  defined  more  clearly 
by  modern  tests ;  it  might  be  expected  that  the 
toiler   in    the    mine    might   miss    the    principles, 


Constitutional  History  of  the  American  People 

though  contributing  by  his  labor  to  their  defini- 
tion in  a  later  state  of  society,  organized  on  an 
industrial  and  civil  basis  such  as  has  been  built 
upon  in  America.  The  thought  of  More,  of 
Milton,  and  of  Locke,  of  Montesquieu  and  of 
Penn,  generalized  upon  the  labor  done  in  that 
mine,  and  grew  into  political  systems,  which, 
though  differing  from  one  another  as  widely  as 
their  authors,  agree  in  placing  a  free  man  at  the 
centre.  It  was  too  soon  to  find  in  any  political 
system  that  modern  correlative — free  labor.  The 
contradiction  was  sophistically  avoided  by  deny- 
ing manhood  to  the  slave.  The  slave  was  a 
beast  of  burden.  But  there  are  those  who  con- 
sider the  end.  It  is  the  function  of  the  political 
philosopher,  in  the  social  economy,  to  anticipate 
results.  Thought  outruns  performance.  So  Mon- 
tesquieu anticipates  the  democracy  of  to-day, 
Hume  anticipates  the  French  Revolution,  and 
Franklin  the  modern  age  of  administration  in 
government.  Franklin  finds  the  theory  of  the 
state  made  up,  and  devotes  himself  to  the  next 
problem — its  administration.  At  times,  from  the 
close  of  the  seventeenth  to  the  close  of  the  eisfh- 
teenth  century,  the  theory  of  the  state  was  set 
forth,  and  the  definition,  modified  by  another  cen- 
tury's experience,  remains  in  the  dictionary  of 
politics  essentially  unchanged.  It  was  made  by 
successive  processes  in  the  evolution  of  democ- 
racy. Its  elements  are  the  individual,  and  that 
aggregate  of  individuals  which  we  call  the  com- 
munity or  state. 


The  Foundations  of  Democracy 

The  history  of  that  definition  is  a  chapter  in 
the  history  of  the  evolution  of  democracy.  Rome 
evolved  the  idea  of  a  legal  body  called  a  corpora- 
tion ;  itself  a  fiction,  but  a  useful  legal  convention. 
This  legal  fiction  was  the  chief  discovery  in  gov- 
ernment for  twelve  hundred  years.  It  was  a  le- 
gal device  capable  of  a  various  civil  application. 
While  it  was  reaching  perfection  in  southern 
Europe  among  the  Greco -Latin  peoples,  the 
Teutonic  peoples  in  northern  Europe  were  yet 
uncivilized.  Communal  and  individual  interests 
were  at  war  in  all  that  region  north  of  the  Roman 
world.  Communal  interests  were  there  subordi- 
nate to  individual.  Between  the  Roman  and  the 
Teuton  was  the  Celt,  who  adjusted  himself  to 
the  military  form  of  the  Roman  state  and  laid  the 
foundations  of  feudalism.  He  divided  the  land 
into  counties,  and  rudely  began  that  communal 
organization  which  has  survived  in  our  local  and 
county  government.  It  was  the  Celt  who  first 
applied  the  Roman  military  idea  in  local  govern- 
ment. It  was  the  Celt  who  first  applied  the  ad- 
ministrative principles  in  the  modern  state,  and 
his  experience,  chiefly  military,  bred  in  him  slight 
respect  for  the  form  of  government.  Hence  in 
the  Celtic  political  economy  arose  a  system  of  ad- 
ministrative law.  A  king  is  as  dear  to  him  by 
any  other  name,  but  he  prefers  the  other  name. 
His  idea  of  the  administration  of  government  is 
military :  the  citizen  is  first  a  soldier.  The  rude 
and  individualistic  Teuton  saw  in  the  Roman  cor- 
poration   not   merely  a  legal   fiction,  but  a  civil 

3 


CoiistHufional  H/sforv  of  the  Aiucrican  People 

opportunity.  Why  not  view  that  burdensome  but 
necessary  relation  between  individual  and  individ- 
ual, between  one  and  many  in  the  state,  as  a 
compact?  Why  not  conceive  of  the  state  as  the 
civil  resultant  of  these  two  factors  —  making  the 
many  a  corporation,  and  yet  not  diminishing  the 
rights  of  individuals?  Between  these  legal  parties 
a  contract  could  be  made,  or  be  conceived  as 
made.  By  the  terms  of  this  contract  civil  rights 
should  be  guaranteed;  the  soldier  should  first  be 
a  citizen.  Rome  gave  the  world  order  without 
liberty.  The  Celt  administers  government  with 
occasional  sacrifice  of  order  to  license.  The 
Teuton  conserves  liberty  and  order. 

Democracy  in  America  is  the  resultant  of 
Roman,  Celtic,  and  Teutonic  ideas.  It  is  a  civil 
composite.  Its  evolution  is  recorded  in  a  series 
of  political  adjustments.  Political  adjustments 
constitute  the  administration  of  (government.  It 
is  that  of  which  Franklin,  Jefferson,  Hamilton, 
and  Lincoln  frequently  speak.  It  is  a  practical 
affair.  It  is  the  other  half  of  the  apple  of  civil  dis- 
cord, as  for  ages  the  first  half  had  been  the  theory 
of  the  state. 

Democracy  in  America  is  but  slightly  original. 
It  was  latent  in  European  life  long  before  the 
colonization  of  America;  but  the  adjustment  of 
local  and  general  interests  in  the  state  has  de- 
veloped before  our  eyes  in  this  country,  and  there- 
fore it  seems  new  and  peculiarly  our  own.  So 
the  fruit  on  the  tree  is  the  farmer's;  the  flower 
on  the  bush   the   gardener's.      Each   wrought   in 


The  Past  Controlling  the  Present 

sincerity,  but  the  seed  was  before  flower  or 
fruit. 

In  the  search  after  the  genesis  of  government  in 
America,  it  is  difficult  to  distribute  the  shares  of 
influence  equitably  among  the  contributing  na- 
tions. It  is  the  present  that  is  hard  to  see.  No 
new  theory  of  the  state  distinguishes  the  political 
philosophy  of  the  nineteenth  century.  Philo- 
sophically, it  is  a  century  with  a  backward  look.  It 
explores  the  past  to  as  great  a  distance  as  it  antic- 
ipates the  future.  It  sets  in  order  the  genesis  of 
our  civil  institutions,  and  resolves  us  all  into  heirs- 
at-law.  We  have  applied  the  past  while  working 
in  the  present.  The  style  of  the  tool  changes ; 
but  frost  and  rain  and  earth  are,  and  weeds  grow 
in  spite  of  botany.  The  apple  on  the  tree,  how- 
ever, is  larger,  fairer,  and  pleasanter  to  the  taste 
than  the  wild  apple ;  the  flower  on  the  stalk  is  the 
history  of  generations  of  gardeners.  Flower  and 
fruit  are  come  from  fruit  and  flower,  and  their 
changes  register  an  evolution  hastened  by  intelli- 
gent culture.  The  free  man  is  a  part  of  the  sys- 
tem. At  one  time  he  was  of  opinion  that  he  was 
at  the  centre  of  the  universe,  but  a  bit  of  glass  and 
the  fall  of  a  Newtonian  apple  put  him  in  his  true 
place.  He  has  his  place  in  nature,  not  in  the 
worst  rank,  but  he  is  a  means  of  adjustment  rather 
than  a  creator. 

Democracy  in  America  is  another  chapter  in 
the  history  of  that  adjustment.  There  is  no  break 
in  the  continuity:  Roman,  Celt,  Teuton,  American, 
each  in   his   time.     No    American    colony  broke 

5 


Coiistititiional  H/sforv  of  the  American  People 

wholly  with  the  past.  The  necessity  for  unre- 
stricted labor  compelled  a  democracy.  Had  the 
vast  area  now  comprised  within  the  United  States 
been  occupied,  at  the  time  of  its  discovery  by 
Europeans,  by  a  wealth  -  accumulating  people, 
however  civilized,  who  permitted  European  con- 
quest, the  conquerors  would  not  have  set  up 
a  democracy ;  the  Mississippi  valley  would  have 
repeated  the  story  of  Mexico  and  Peru,  Had 
gold  or  silver  abounded  in  New  England,  Penn- 
sylvania, or  Virginia,  the  evolution  of  democracy 
on  the  Atlantic  seaboard  would  have  been  retarded 
for  centuries.  Had  the  mechanical  devices  famil- 
iar now  in  lumbering^,  in  mininij,  in  manufactur- 
ing,  and  in  agriculture  been  familiar  to  the  world 
at  the  opening  of  the  seventeenth  century,  democ- 
racy in  America  would  still  be  a  matter  of  politi- 
cal speculation. 

It  was  the  necessity  for  labor  that  de.throned 
the  king  and  enthroned  the  people  in  America. 
But  the  king  is  not  dead.  He  never  dies.  We 
believe  that  we  have  crowned  ourselves.  We  are 
Celtic  yet.  Our  democracy,  however,  is  not  wholly 
of  our  own  having.  It  is  our  political  weather. 
It  does  not  give  universal  satisfaction.  We  have 
had  it  long  enough  to  tire  of  some  of  its  virtues, 
and,  if  not  acquainted  with  some  of  its  vices,  to 
be  suspicious  of  their  existence.  The  foundation 
of  democracy  is  the  necessity  for  free  labor.  If 
that  ceases  or  is  circumscribed,  democracy  will 
cease,  or  will  be  circumscribed.  The  fate  of  de- 
mocracy  hangs   on    free  labor.     As  long   as   the 

6 


Free  Labor  and  the  Revolution 

free  man  can  labor  and  satisfy  his  wants  in  this 
country,  democracy  is  a  condition  as  well  as  a 
consequence  of  his  labor.  Remove  the  field  or 
withhold  the  rewards  of  his  labor,  and  democracy 
will  disappear.  It  will  become  despotism,  and  it 
will  go  the  way  of  other  despotisms. 

Its  fall  will  be  hastened  by  its  complexity.  De- 
mocracy is  not  so  simple  as  monarchy.  It  was 
long  ago  pointed  out  by  Montesquieu  that  in  a 
democracy  there  is  need  of  more  virtue  than  in  a 
monarchy ;  for  a  democracy  depends  upon  the 
virtue  of  its  citizens,  while  a  monarchy  depends 
upon  the  virtue  of  its  ruling  house.  There  is 
essentially  the  same  requisite  in  both  :  those  who 
rule  must  be  virtuous.  But  virtue  in  a  democracy 
lies  close  to  industry.  The  state  cannot  get  away 
from  the  mine,  from  the  factory,  from  the  soil. 

The  crisis  in  the  history  of  democracy  turns  on 
industrial  adjustments.  The  American  Revolu- 
tion was  a  war  for  free  labor;  its  political  pur- 
poses and  effects  were  secondary.  The  political 
rights  of  our  grandfathers  were  scarcely  changed 
by  Saratoga  and  Yorktown ;  these  contributed  to 
secure  their  industrial  rights.  The  civil  war  was 
a  process  of  industrial  adjustment.  A  democracy 
must  consist  wholly  of  free  men ;  the  old  idea  of 
free  states  and  free  men  must  be  realized.  America 
was  not  a  democracy  until  slavery  was  abolished. 
If  it  exists  to-day  in  any  form  in  the  United 
States,  then  democracy  does  not  obtain  among  us. 

There  is  a  record  of  the  evolution  of  democracy 
in  America  which  seems  to   escape  common  at- 

7 


Constitutional  History  of  tbc  American  People 

tention.  It  is  a  record  written  by  hard  experi- 
ence. It  is  found  in  the  declarations  of  rights  of 
our  five-and-forty  State  constitutions,  and  in  the 
amendments  to  the  "  supreme  law  of  the  land." 
For  instance,  the  thirteenth,  fourteenth,  and  fif- 
teenth amendments  to  the  national  Constitution 
were  necessitated  by  the  industrial  effects  of  the 
civil  war.  They  record  the  national  adjustment 
towards  the  close  of  the  nineteenth  century. 
Though  recorded  in  political  form,  they  mean  an 
industrial  and  an  anterior  fact.  They  are  beyond 
repeal,  just  as  the  steam-engine  and  the  printing- 
press  are  beyond  repeal.  Politics  writes  after 
them  that  their  sanction  is  in  Congress,  which  has 
power  to  enforce  them  by  appropriate  legislation. 
This  power  is  of  vast  import  and  is  to  be  exer- 
cised according  to  the  necessities  of  industrial 
life.  The  necessary  blending  of  industry  and 
politics  in  a  democracy  is  illustrated  in  the  funda- 
mental laws  of  the  local  governments,  the  consti- 
tutions of  the  States.  These  are  the  most  re- 
liable history  extant  of  democracy  in  America. 
One  hundred  and  sixteen  of  these  constitutions 
have  been  adopted  since  June,  1776.  In  the  only 
one  of  the  eighteenth  century  which  continues  in 
force,  that  of  Massachusetts  of  1 780,  the  state  is 
declared  to  be  a  contract,  that  the  government 
"  may  be  a  government  of  laws,  and  not  of  men." 
William  Penn  conceived  of  the  state  as  a  compact, 
but  the  government  w^as  to  be  a  government  of 
men,  and  not  of  laws.  The  evolution  of  these 
two    ideas    is    the    history  of    American   politics. 


Politics  versus  Industry 

Democracy  in  America  records  the  contest  be- 
tween laws — a  conventional  system  of  politics — 
and  men  struggling  for  industrial  freedom.  This 
is  shown  in  the  history  of  the  franchise. 

Experience  in  administration  has  passed  over 
into  formal  statements  in  bills  of  rights.  These 
clauses,  brief  in  1776,  have  grown  into  a  treatise 
on  civil  principles  in  the  present  constitutions. 
Industrial  life  wrought  this  change.  The  provis- 
ions in  these  bills  are  the  generalizations  on  in- 
dustrial data  which  record  the  evolution  of  democ- 
racy in  all  ages. 

Whatever  discord  may  at  present  rage  in  the 
state,  it  is  but  the  continuation  of  the  old  discord 
between  desire  and  performance,  between  condi- 
tions in  the  evolution  of  government  and  the  self- 
ishness of  men.  But  in  the  industrial  world,  as  in 
politics,  liberty  may  run  into  license.  That  world 
has  its  order  and  its  chaos,  its  desire  and  its  per- 
formance, its  theory  and  its  administration.  Per- 
haps it  is  unfortunate  for  the  fate  of  democracy  in 
America  that  we  have  always  attempted  to  inter- 
pret it  politically.  Our  books  represent  it  as  a 
political  device.  It  has  become  almost  axiomatic 
with  us  to  seek  the  solution  of  problems  in  the 
state  by  a  political  agreement  rather  than  by  a 
better  industrial  organization.  Politics  and  labor 
are  the  democratic  team ;  but  politics  leads. 
The  state,  if  corrupt,  is  regarded  as  politically  cor- 
rupt. Industry  has  been  the  shuttlecock  of  poli- 
tics, and  those  who  labor  have  been  viewed  as 
the  beneficiaries  of  the  state,  and  not  truly  as  its 

9 


Const  it  lit  ioiial  History  of  tbe  American  People 

essential  elements.  The  industrial  discontents 
which  characterize  the  present  cannot  all  be  right- 
ly charged  against  democracy.  They  exist  inde- 
pendent of  the  form  of  government.  It  was  long 
thought  that  political  equality  would  secure  in- 
dustrial equality,  but  the  effort  to  read  industrial 
equality  into  life  has  not  yet  been  an  unqualified 
success.  At  present,  the  theory  is  winning  popular 
support  that  the  government — the  public  business 
of  the  state — should  be  made  an  industrial,  as  long 
ago  it  was  made  a  political,  copartnership.  De- 
mocracy is  now  construed  towards  communism, 
towards  a  labor  copartnership.  The  political  co- 
partnership, on  the  basis  of  equality,  has  failed  to 
make  each  citizen  rich,  and  those  who  have  not 
suspect  those  who  have  to  be  robbers,  and  look 
upon  the  state  as  the  chief  robber  of  all.  In  other 
words,  democracy  in  America  is  showing  its  mate- 
rial side.  Men  are  not  content  w-ith  the  mere 
blessings  of  political  liberty ;  they  demand  wealth 
wherewith  to  enjoy  the  blessings.  In  a  democ- 
racy Nemesis  is  active.  The  privileges  of  democ- 
racy breed  discontent.  Whatever  the  form  or 
the  idea  of  the  state,  man  cannot  get  rid  of  him- 
self. His  philosophy,  his  vagaries,  his  stomach, 
are  always  with  him.  Democracy  is  not  an  insur- 
ance against  the  consequences  of  being  born  into 
the  world.  It  is  no  panacea.  It  has  been  quite  a 
fashion,  in  this  country,  to  maintain  that  our  polit- 
ical institutions  are  a  Providential  device  for  "  re- 
dressing the  wrongs  of  the  Old  World."  There 
can  be  no  such   device.     The  state   is  no  better 


Test  of  Healthy  Statesmanship 

than  the  men  and  women  in  it ;  it  can  do  no  more 
than  they. 

A  sound  statesmanship  starts  with  a  sound 
man.  If  no  such  man  exists,  then  he  must  de- 
velop before  the  healthy  state  can  come.  And 
the  people  know  this ;  whence  their  lack  of  rever- 
ence for  the  state.  It  is  a  thing  which  they  made, 
and  they  know  its  imperfections.  "  Vanitas  vani- 
tatum !"  They  have  made  nothing.  Did  the 
farmer  make  the  apple,  or  the  gardener  the  flower.? 
It  is  not  only  political  but  industrial  honesty  that 
we  need.  The  coin  that  is  current  in  a  sound 
state  has  two  faces.  If  on  the  one  side  there  is  to 
be  read,  "  Man  has  by  nature  a  political  life,"  on 
the  other  it  reads,  "  and  an  industrial  also." 

Two  centuries  ago  democracy  was  necessitated 
by  forests  to  be  cleared,  mines  to  be  worked,  fields 
to  be  ploughed,  things  to  be  made,  social  relations 
and  functions  to  be  determined.  This  was  at  the 
threshold  of  a  material  age  in  the  evolution  of 
democracy.  Some  rude  adjustments  must  be  ex- 
pected in  politics,  while  yet  the  industrial  appa- 
ratus of  the  people  is  rude.  The  intricacies  of 
democracy  do  not  disclose  themselves  at  first 
view.  It  is  the  administration  of  o-overnment  in  a 
democracy  that  tests  its  strength.  An  untouched 
continent  afforded  the  material  opportunity  of  the 
modern  world.  That  opportunity  was  America. 
Now  that  the  plough  has  furrowed  across  the  conti- 
nent, that  the  primeval  forest  has  been  cut  down, 
that  the  first  output  of  the  mines  has  made  their 
operation  more  difficult  and  less  remunerative,  an 


Const  Hut  ion  al  History  of  the  American  People 

industrial  adjustment  is  thought  necessary.  The 
process  of  that  adjustment  is  complicated,  because 
it  involves  both  the  politics  and  the  labor  of  men. 
It  demands  political  recognition.  Labor  calls 
upon  the  state  for  a  guarantee.  Labor  seeks  a 
political  formula  by  which  every  man  may  gain 
wealth.  There  is  no  doubt  that  this  condition 
implies  changes  in  the  state.  Is  the  state  here- 
after to  be  defined  as  an  industrial  corporation,  a 
copartnership  of  men  for  things.''  -Is  the  state  to 
be  conceived  in  this  material  philosophy  as  a  fac- 
tory for  the  general  welfare?  Is  it  a  device  to 
assist  those  to  acquire  wealth  who  are  incapable 
themselves  of  acquiring  it.?  Is  society  to  be  di- 
vided into  two  groups:  first,  the  state  and  the 
poor ;  second,  the  rich  .?  Or  is  the  state,  like  war, 
to  be  the  "  corrector  of  enormous  times,"  and  the 
enormity  of  the  times  to  be  wholly  adjudged  by 
those  who  wage  the  war  and  who  expect  to  profit 
by  it.*^  Is  democracy  in  America,  like  monarchy 
and  aristocracy  in  Europe,  to  develop  class  inter- 
ests, those  of  the  house  of  Have  and  those  of  the 
house  of  Want } 

Our  democracy  is  evidently  in  a  rudimentary 
stage.  In  spite  of  our  suspicions  of  its  defects, 
we  like  the  reformers  and  their  reforms  no  better. 
We  are  certain  of  one  error,  the  opinion  that  our 
democratic  institutions  would  correct  the  ills  of 
mankind.  Now  w^e  cry  to  the  oppressed  of  man- 
kind, "  Stay  at  home  and  endure  your  oppressions; 
we  have  our  troubles,  also." 

Wealth  brings  leisure,  and  leisure  breeds  criti- 


Elevating  Influence  of  True  Democracy 

cism  and  discontent.  A  portion  of  our  discontent 
arises  from  our  limited  notions  of  democracy.  It 
consists  of  more  than  meat  and  drink  and  a  ballot. 
The  whole  man  is  involved  in  it.  He  is  somewhat 
more  than  an  economic  integer.  His  world  is  also 
moral  and  metaphysical.  Material  results  will 
never  satisfy  him.  The  range  of  his  activities  is 
beyond  the  merely  industrial  treadmill.  Our 
boasted  mechanical  devices  are  in  vain  if  the  gain 
by  them  is  merely  more  material.  Moses  and 
Newton  got  on  well  without  the  steam-engine  or 
the  telegraph.  Comforts,  wearily  won,  are  quickly 
forgotten  when  the  only  capacity  is  for  "  more, 
more." 

Democracy  has  for  its  ultimate  that  with  which 
it  begins — man.  It  is  doubtless  productive  of  un- 
expected results,  but  in  its  evolution  it  must  include 
the  whole  interest  of  man.  Every  actual  state, 
says  Emerson,  is  corrupt.  The  element  of  decay 
in  our  democracy  is  the  cheapness  at  which  it 
holds  man.  This  evil  has  long  been  known.  It 
was  apprehended  by  the  most  democratic  of  Amer- 
ican colonizers  more  than  two  centuries  ago. 
William  Penn  had  learned  from  Sidney,  and 
Locke  and  Montesquieu  had  learned  from  Penn. 
"  The  great  end  of  all  government,"  Penn  de- 
clares, in  his  frame  of  government  of  1682  for 
Pennsylvania,*  is  "  to  support  power  in  reverence 
with  the  people,  and  to  secure  the  people  from  the 
abuse  of  power,  that  they  may  be  free  by  their  just 

*  Charter  to  William  Penn  and  Laws  of  the  Province  of  Penn- 
sylvania (Harrisburg,  1879),  p.  93. 

13 


Coiislitiif tonal  History  of  the  American  People 

obedience,  and  the  magistrates  honorable  for  their 
just  administration;  for  liberty  without  obedience 
is  confusion,  and  obedience  without  liberty  is  slav- 
ery. To  carry  this  evenness  is  partly  owing  to 
the  constitution  "  (that  is,  the  theory  of  the  state), 
"  and  partly  to  the  magistracy  "  (that  is,  the  ad- 
ministration of  government).  "  Where  either  of 
these  fails,  government  will  be  subject  to  convul- 
sions; but  where  both  are  wanting,  it  must  be 
totally  subverted ;  then  where  both  meet  the  gov- 
ernment is  likely  to  endure." 

The  convulsion  of  1861  was  an  instance  in 
which  one  of  these  failed.  It  proved  that  Ameri- 
can democracy  could  not  be  longer  administered 
with  its  growth  retarded  by  "  obedience  without 
liberty."  Experience  alone  can  correct  the  evils 
in  the  state.  With  the  leisure  of  the  twentieth 
century  there  come  its  political  convulsions.  If, 
in  some  way,  men  and  women  of  leisure  could  see 
the  necessity  for  labor,  in  order  that  government 
of  a  democratic  kind  may  endure,  they  would  find 
fields  for  their  best  efforts  all  about  them.  Munic- 
ipal evils  are  not  all  in  the  city -hall.  Public 
charity  is  self-defence  in  disguise.  If  they  who 
have  amassed  wealth  desire  its  safety,  it  is  better 
to  make  the  use  of  that  wealth  a  matter  of  public 
concern  by  bringing  to  its  defence  those  who 
might  destroy  it.  Time  is  the  best  friend  of 
democracy.  The  canal-boy  of  to-day  is  the  Pres- 
ident of  to-morrow.  The  daughter  of  old  Scrooge 
founds  a  hospital  or  endows  a  school.  Labor  will 
have  its  own.     In  the  evolution  of  democracy  in 

14 


A  Transformation  of  Feudalism 

America  industry  shall  receive  its  own,  and  poli- 
tics shall  have  its  own,  and  no  more.  The  admin- 
istration of  government  is  the  chief  public  concern. 
But  in  that  administration  man  must  be  credited 
his  full  estate.  Man,  the  citizen,  must  reckon  with 
himself,  and  face  his  own  destiny.  Though  crafty 
devices  may  seem  to  shift  the  burden  of  citizen- 
ship, the  burden  will  always  be  found  in  the  ever- 
increasing  wants  of  the  citizen  himself.  In  democ- 
racy, as  in  other  forms  of  the  state,  it  is  govern- 
ment of  man  for  man  that  is  wanted.  Thouo;h  the 
state  be  convulsed,  though  it  be  subverted,  man 
will  remain.  The  evolution  of  man  is  the  hope  of 
the  state.  In  a  democracy  it  is  better  to  have  a 
government  of  men  rather  than  a  government  of 
laws.  Then,  whatever  the  forms  of  the  state,  the 
great  end  of  all  government  will  be  secured. 

My  theme  is  a  history  of  the  evolution  of  de- 
mocracy in  America ;  and  by  the  term  democracy 
is  to  be  understood  the  form  of  government,  not 
the  doctrines  of  a  political  party.  The  civil  insti- 
tutions of  a  free  people  are  composite.  Those  of 
America  are  both  a  survival  of  the  past  and  a 
promise  of  the  future.  A  determining  factor  in 
the  development  of  government  in  Europe  was 
feudalism.  In  America  feudalism  was  trans- 
formed rather  than  obliterated.  In  place  of  the 
feudal  system  was  substituted  a  system  of  checks 
and  balances  in  government,  by  means  of  which 
the  integral  parts  of  civil  society  were  duly  func- 
tioned and  the  unity  of  the  whole  preserved.  At 
least,  this  is  the  theory  which  American  democ- 

15 


Constitutional  History  of  the  Americau  People 

racy  sets  forth  at  the  time  when,  colonialism 
having  been  transformed  into  continentalism,  con- 
tincntalism  was  again  transformed  into  nationality. 
Little  is  heard  in  our  day  of  that  favorite  device 
of  American  statesmen  of  the  eighteenth  century : 
the  device  of  checks  and  balances.  And  chiefly 
for  this  reason :  that  the  test  of  government  in 
our  time  is  its  administration,  not  its  theory.  A 
history  of  the  development  of  constitutional  gov- 
ernment in  America  is  a  history  of  political  theo- 
ries, political  principles,  and  political  administra- 
tion. If  democracy  as  a  form  of  government  is 
worthy  of  the  support  of  mankind,  it  must  rest  upon 
political  principles,  and  the  history  of  the  inter- 
pretation and  application  of  these  principles  will 
be  the  history  of  the  evolution  of  popular  govern- 
ment. Although  our  constitutional  history  appar- 
ently involves  elaborate  analysis  of  many  laws  and 
constitutions,  yet  the  principles  upon  which  our 
political  institutions  are  founded  are  few.  I  know 
of  no  better  formulation  of  these  principles  than 
that  made  by  Webster.*  Popular  government 
rests  on  the  basis  of  representation  ;  the  will  of  the 
majority  is  the  force  of  law ;  the  law  is  the  supreme 
rule  in  the  government  of  all ;  the  supreme  law  is 
declared  in  written  constitutions ;  public  education 
is  the  diffusion  of  true  morality.  Webster's  in- 
clusion of  education  as  a  paramount  factor  in  the 

*  Address  at  the  laying  of  the  corner-stone  of  the  addition  to 
the  Capitol,  July  4,  1851.  See  also  Plymouth  oration,  December 
20,  1820;  Bunker  Hill  oration,  June  17,  1843;  and  argument  in 
Luther  ^'J.  Borden,  January  27,  1848. 

16 


Education  the  Guardian  of  Public  Safety 

state  was  made  before  a  system  of  public  schools, 
supported  by  public  taxation,  had  been  adopted  in 
any  American  commonwealth.  Webster  to  the 
end  of  his  life  showed  the  effect  of  social  condi- 
tions which  prevailed  in  America  in  his  earlier 
years.  Then  it  was  commonly  believed  that  po- 
litical privileges  could  safely  be  intrusted  only  to 
those  who  proved  themselves  worthy  by  possess- 
ing property,  usually  realty,  and  by  professing  be- 
lief in  a  religious  creed.  Property  and  religious 
qualifications  were  thought  to  be  the  guardians  of 
public  safety.  The  elector,  therefore,  was  required 
to  comply  with  them,  and  the  elected  not  only  to 
profess  his  belief  in  a  prescribed  creed,  whether 
fixed  by  law  or  by  public  opinion,  but  also  to  pos- 
sess a  greater  amount  of  property  than  that  re- 
quired of  the  elector.  Since  Webster's  time,  pub- 
lic opinion  has  changed,  and  in  place  of  property 
and  religious  qualifications  it  has  substituted  man- 
hood suffrage.  Webster's  grouping  of  the  prin- 
ciples on  which  government  in  America  is  found- 
ed differs  in  language  rather  than  in  thought  from 
doctrines  made  familiar  to  the  world  largely  through 
the  instrumentality  of  Thomas  Jefferson  and  his 
disciples — the  social  compact,  the  equality  of  man, 
the  right  of  revolution.  Neither  science  nor  ex- 
perience sanctions  the  doctrine  of  the  equality  of 
man ;  yet  this  unscientific  and  a  priori  idea  must 
unhesitatingly  be  accepted  as  one  of  the  paramount 
forces  in  American  democracy.  It  is  a  doctrine 
which  depends  for  its  significance  largely  upon 
popular  enthusiasm.  Yet  so  effective  has  it 
I. — B  17 


Coiistitnlioiial  History  of  the  Amcriiau  People 

proved  in  practical  administration  that  it  must 
be  recognized  as  a  permanent  element  in  the 
evolution  of  our  civil  institutions.  Because  of 
this  doctrine  the  full  significance  of  the  transi- 
tion from  a  military  to  a  civil  basis  in  government 
in  America  may  be  measured.  And  undoubtedly 
because  of  this  doctrine  there  will  be  measured 
hereafter  the  true  meaning  of  the  transition  now 
going  on  from  a  military  to  an  industrial  type  of 
society. 

During  the  seventeenth  century  the  colonists 
worked  out,  perhaps  unconsciously,  a  practical 
definition  of  many  civil  rights  of  man.  Yet  sev- 
eral of  these  rights  were  to  be  worked  out  at  a 
later  day :  as  the  right  of  freedom  of  speech,  free- 
dom of  the  press,  and  exemptions  from  unwarrant- 
able searches  and  seizures.  The  period  of  this 
evolution  may  be  said  to  terminate  with  the  clos- 
ing years  of  the  seventeenth  century,  and  the 
year  1689  may  be  named  as  the  time  when  this 
phase  of  the  evolution  of  American  democracy 
closed.  With  the  opening  of  the  eighteenth  cen- 
tury popular  government,  though  as  yet  latent  in 
the  bud,  rapidly  evolved  in  measures  of  adminis- 
tration, both  colonial  and  imperial,  until  at  length 
antagonistic  interpretations  of  civil  administration 
precipitated  the  American  Revolution.  That  Rev- 
olution, which  gave  us  our  independence  as  a  na- 
tion, was  not  fought  to  prove  a  theory.  Rather 
was  it  the  natural,  though  painful,  conclusion  of 
many  matters  which  had  long  been  in  civil  litiga- 
tion.    It  was  a  revolution  which  affected  England 

18 


Expansion  of  the  Principles  of  the  Revolution 

quite  as  much  as  America:  for  the  resolution  of 
civil  affairs  after  1776  was  more  liberal  through- 
out the  entire  English-speaking  world.  It  was  a 
deadly  blow  to  feudalism,  and  particularly  to  that 
cruel  form  of  feudalism,  the  mercantile  theory. 
At  first  reading  the  Revolution  seems  to  have 
been  a  blow  struck  against  the  Crown.  It  was, 
indeed,  a  blow,  and  the  Crown  typified  the  object 
against  which  it  was  levelled,  but  the  type  was 
tyrannical  industrially  quite  as  much  as  politi- 
cally. It  must  not  be  forgotten  that  government 
is  a  natural  product.  It  is  a  phase  of  the  evolu- 
tion of  civilization.  When  events  have  resolved 
themselves  into  historical  perspective  the  truth  of 
this  is  evident.  Our  fathers  builded  wiser  than 
they  knew,  for  they  builded  for  all  time.  They 
who  build  in  harmony  with  the  natural  develop- 
ment of  civil  institutions  are  building  just  as 
wisely.  Each  generation  thinks  itself  face  to  face 
with  a  crisis,  but  the  crisis  passes  away,  leaving 
many  of  the  old  problems  still  unsolved.  The 
literature  of  America  at  the  time  of  the  Revo- 
lution of  1776  is  a  literature  of  reason  and  ex- 
postulation. It  is  a  literature  whose  content  is 
the  accumulated  wisdom  of  man.  It  is  composite, 
comprehensive,  and  prophetic.  Yet  the  true  char- 
acter of  the  democracy  of  the  eighteenth  century 
is  probably  clearer  to  us  now  than  to  those  who 
lived  then.  Political  enfranchisement  was  prac- 
tically concentrated  in  the  closing  years  of  the 
eighteenth  century,  and  it  signified  a  reorganiza- 
tion of  the  state  rather  than  any  discovery  or  in- 

19 


Cousin  lit  ional  History  of  tbc  American  People 

novation  in  civil  affairs.  The  cardinal  doctrine 
of  the  time  was  that  of  the  equality  of  men  ;  a 
doctrine  which  is  profoundly  ethical,  but  not 
profoundly  intellectual.  The  democracy  which 
evolved  from  that  germ  has  applied  political  ideal- 
ism to  the  state.  For  this  reason  American  de- 
mocracy is  measurable  not  by  its  forms  and  va- 
ried functions  only,  but  by  its  social  ef^ciency. 
For  this  reason  the  national  is  paramount  to  the 
commonwealth  idea.  If  the  Americans  possess 
political  genius  in  any  degree  it  is  for  adapting 
old  institutions  to  new  wants.  They  do  not  tear 
down  the  political  edifice,  but  rather  make  such 
additions  and  repairs  as  seem  necessary  from  time 
to  time.  Yet  behind  the  mere  mechanics  of  de- 
mocracy a  true  organic  development  is  recogniz- 
able. American  democracy,  like  Greek  poetry,  is 
the  presentation  of  the  whole  estate  of  man.  A 
history  of  the  evolution  of  democracy  in  America 
must  be  limited  to  particular  phases,  such  as  the 
literary,  the  ethical,  the  industrial,  or  the  constitu- 
tional. These  elements,  and  others  that  might  be 
mentioned, are  co-ordinate  and  comprise  the  grand 
theme.  The  historian  shrinks  from  attempting  to 
trace  the  record  of  democracy  in  all  its  phases. 
He  must  be  satisfied,  and  indeed  thrice  happy,  if 
he  is  able  to  trace,  even  imperfectly,  the  record 
of  a  single  phase. 

It  is  my  purpose  to  record  some  constitutional 
phases  of  the  development  of  American  democ- 
racy. This  record,  fortunately,  is  accessible  in 
forms    of   indisputable  value  and   worthy  of   our 


Sequence  of  Political  Aspirations 

faith.  Among  these  are  the  organic  laws — that 
is,  the  body  of  American  constitutions  of  govern- 
ment, which  begin  with  the  charters  in  the  earlier 
years  of  the  seventeenth  century  and  continue  in 
the  written  constitutions  of  our  own  time.  Yet 
these  do  not  contain  the  whole  story.  There  are 
other  laws,  the  work  of  Legislatures,  and  also  trea- 
ties and  agreements  between  America  and  other 
nations.  Running  through  all  these  acts  is  an  un- 
broken course  of  political  thought,  a  commentary, 
as  it  were,  on  principles  upon  which  the  integrity 
of  our  institutions  depends.  These  principles  ap- 
pear in  different  aspects  at  different  times.  Thus, 
at  the  close  of  the  eighteenth  century  they  are 
conspicuous  in  bills  of  rights  and  the  first  written 
constitutions  of  the  country.  Later  they  appear 
in  the  effort  to  administer  the  government  of  the 
United  States  and  of  the  commonwealths,  and  es- 
pecially in  the  discussions  in  State  Legislatures,  in 
political  conventions,  in  Congress,  in  the  courts,  and 
in  conventions  which  have  given  us  the  later  con- 
stitutions of  government.  The  history  of  Ameri- 
can democracy,  therefore,  is  a  history  of  political 
thought  rather  than  of  individuals.  If  it  lacks 
feudal  interest,  it  possesses  the  charm  of  civil 
equity.  It  is  a  history  of  the  development  of 
equal  social  opportunities.  It  is,  indeed,  an  in- 
dustrial history  in  a  political  form.  Looking  back- 
ward now,  we  see  how  the  crises  in  American  af- 
fairs have  terminated  in  a  new  enlightenment  of 
public  opinion  and  in  a  more  perfect  understand- 
ing of  the  powers,  the   privileges,  and  the  duties 

21 


Coiisfiliifioiidl  History  of  the  American  People 

of  men.  Democracy  must  be  distinguished  from 
ochlocracy.  Popular  government  does  not  signify 
the  passions  of  a  mob.  If  four  centuries  of  civili- 
zation in  America  have  any  meaning,  it  is  that 
popular  government  is  conscious  of  its  solemn 
responsibilities.  This  consciousness  is  suggested 
in  many  ways,  and  perhaps  in  none  more  per- 
suasively than  in  the  sensitiveness  of  American 
democracy  to  suffering  and  wrong,  as  the  numer- 
ous benevolent  institutions  of  the  land  testify. 
Few,  if  any,  of  these  existed  before  the  Declaration 
of  Independence.  They  were  founded  in  great 
numbers  after  1850.  At  some  time  during  this 
three-quarters  of  a  century  the  transition  was 
made,  in  this  country,  from  ancient  egoism  to 
modern  altruism.  Under  the  old  regime  the  only 
ties  held  sacred  were  the  ties  of  blood ;  under  the 
new,  the  ties  of  humanity  are  equally  sacred.  In 
the  normal  development  of  our  institutions,  these 
ties  will  be  venerated  in  equal  degree.  Already  the 
military  type  has  almost  disappeared  from  our  insti- 
tutions, and  with  the  ascendency  of  the  civil  power 
the  whole  people  have  been  enfranchised.  No  evi- 
dence of  this  enfranchisement  is  of  profounder  sig- 
nificance than  the  extinction  of  slavery,  which, 
delayed  for  centuries,  but  swift  at  last,  was  an  al- 
truistic process,  and  one  inevitable  in  a  democracy 
like  our  own.  Ancient  legislation  knew  little  of 
the  individual  except  as  he  was  a  member  of  the 
most  favored  class.  Modern  legislation  emanci- 
pates individuals  with  impartiality.  The  record 
of  this  benevolence  is  clearly  marked  in  the  evo- 


Development  of  National  Government 

lution  of  American  democracy.  And  it  is  to  be 
found  in  places  in  which  many  might  not  at  first 
search  for  it.  Our  national  government  has  long 
attracted  and  concentrated  the  attention  of  our  own 
people,  and,  to  some  extent,  of  the  people  of  other 
lands ;  but  our  national  government  is  only  a  part 
of  our  democracy.  The  commonwealths  are  in 
many  respects  closer  to  us  than  the  nation,  and  do 
not  so  widely  differ  one  from  another  as  to  pre- 
clude tracing  the  principles  on  which  the  institu- 
tions of  each  are  founded.  The  colonial  era,  the 
beginning  of  government  in  America,  may  be  said 
to  cease  with  the  treaty  of  Paris  of  1763,  when  the 
North  American  continent  came  practically  under 
the  control  of  the  Anglo-Saxon  race.  From  the 
treaty  of  Paris  to  the  Declaration  of  Independence 
was  a  brief  interval  of  continentalism,  during  which 
public  opinion  was  for  the  first  time  formulated 
under  a  dominant  idea.  With  the  Declaration 
there  also  went  out  to  the  world  the  first  consti- 
tutions of  the  States  in  which  the  best  of  colonial- 
ism survived,  and  the  transition  to  a  more  perfect 
form  of  commonwealth  organization  was  effected. 
These,  being  imperfect,  soon  made  way  for  a  second 
group,  and  with  this  came  the  national  Constitu- 
tion, itself  a  composite,  and  the  survival  of  earlier 
ideas  of  union.  For  nearly  one  hundred  and  fifty 
years  before  the  making  of  the  national  Constitu- 
tion, the  people  of  America  had  been  tending 
towards  industrial  and  political  union.  Although 
no  perfect  union  was  effected,  many  attempts  were 
made,  beginning  with  the  union  of  the  four  New 

23 


Const il lit iothil  History  of  the  Amcricau  People 

England  colonies  in  1643,  ^"^  concluding  with 
the  Articles  of  Confederation  of  1781.  These  at- 
tempts record  the  evolution  of  the  national  idea, 
and  are  the  parent  of  the  Constitution  of  1787. 
Parallel  with  this  growth  of  national  ideas  was 
the  development  of  the  more  perfect  common- 
wealth, beginning  with  the  charters  and  conclud- 
ing with  the  first  State  constitutions  in  1776. 
Dual  political  ideas  thus  grew  up  in  the  land,  and 
their  duality  became  a  characteristic  of  democracy, 
plainly  recognized  after  the  treaty  of  Paris,  and 
duly  functioned  in  the  organic  laws  of  the  States 
in  the  concluding  years  of  the  eighteenth  century. 
This  was  a  century  of  political  theories  and  def- 
initions set  forth  in  bills  of  rights  which  remain 
almost  unchanged  to  our  own  day,  and  probably 
will  continue  to  be  recognized  on  this  continent  as 
the  accepted  statement  of  political  and  civil  rights. 
Their  chief  quality  is  their  recognition  of  the 
rights  of  the  individual.  They  made  the  free  man 
the  centre  of  the  civil  system.  Every  bill  of  rights 
of  the  eighteenth  century  emphasized  him  as  the 
chief  element  in  society  to  be  conserved.  If  we 
look  for  some  formula  for  the  conservation  of  the 
state,  we  shall  not  find  it  in  the  eighteenth  cen- 
tury. A  century  later,  a  constitution  commonly 
sets  forth  some  rights  of  society,  of  the  community, 
of  the  state.  Another  characteristic  of  eis^hteenth- 
century  political  thought  was  its  emphasis  of  politi- 
cal theories.  This  was  inevitable.  Theory  pre- 
cedes practice,  especially  in  affairs  of  state,  and 
colonial  practice  in  government  had  been  efficient 

24 


The  Constitution  the  Parent  of  Parties 

chiefly  in  the  evolution  of  bills  of  rights.  The 
difference  between  theory  and  practice  in  govern- 
ment is  well  illustrated  by  comparing  the  national 
with  any  of  the  earlier  State  constitutions.  The 
national  Constitution  originally  contained  no  bill 
of  rights.  It  was  intended  to  be  administrative, 
not  theoretical,  in  character.  It  contains  no  def- 
inition of  nationality ;  no  definition  of  what  is 
meant  by  "  We,  the  people  of  the  United  States"; 
no  definition  of  the  exact  relation  between  the 
Union  and  the  States;  no  definition  of  the  precise 
limits  of  State  or  Congressional  legislation.  In- 
deed, it  is  an  instrument  conspicuously  lacking  in 
what  many  might  seek  in  the  supreme  law  of  the 
land.  The  omission  of  definitions  has  proved 
the  wisdom  of  its  makers  and  the  opportunity  of 
posterity.  It  has  given  ample  scope  to  the  Ameri- 
can people  to  exercise  their  political  genius  in  ad- 
justing themselves  to  new  industrial  and  political 
conditions.  The  Constitution  never  laid  down 
hard  and  fast  lines  of  civil  procedure.  Yet,  chiefly 
because  such  fundamental  provisions  were  lacking, 
the  conduct  of  national  politics  fell  inevitably  into 
the  hands  of  political  parties,  and  government  be- 
came an  affair  of  administration.  Parties  did  not 
exist  in  colonial  times,  and  they  are  yet  in  the  in- 
fancy of  their  power.  They  afford  full  opportunity 
for  the  genius  of  individuals,  and  are  the  responsi- 
ble means  by  which  a  conscious  people  adjust 
themselves  to  changing  conditions. 

A  constitutional  history  of  democracy  in  Amer- 
ica is,  therefore,  a   history  of  political  and   civil 

25 


Const  it  lit  ioiial  History  of  tiic  American  People 

adjustments,  usually  recorded  in  laws  and  consti- 
tutions. The  industrial  and  social  forces  which 
have  determined  the  development  of  our  institu- 
tions have  determined  the  character  of  the  law  of 
the  land.  The  first  group  is  continental,  compris- 
ing the  constitutions  of  the  Revolutionar}^  era, 
coinciding  nearly  with  the  last  twenty -five  years 
of  the  eighteenth  century.  During  the  first  half 
of  the  nineteenth  century  appear  another  group 
of  constitutions,  which  record  the  first  efforts  of 
the  American  people  to  administer  their  theories 
of  government  in  the  light  of  a  wider  experience 
and  under  the  compulsion  and  opportunities  of  a 
new  industrial  life.  During  this  half-century  the 
contending  political  systems  of  the  country  were 
exhaustively  formulated,  and  attempt  was  made  to 
solve  in  the  forum  problems  later  solved  on  the 
battle-field.  From  1850  to  1876  was  the  era  of  a 
counter-revolution,  during  which  public  opinion 
formulated  the  thought  of  the  new  nation.  Later 
constitutions  are  a  recognition,  by  the  people  of 
the  United  States,  of  the  true  character  of  social 
efficiency  of  a  national  type.  The  people  applied 
their  notions  not  only  by  amending  the  national 
Constitution,  but  also  by  changing  the  constitu- 
tions of  many  of  the  States.  After  1876,  and  dur- 
ing the  remaining  years  of  the  nineteenth  century, 
industrial  reforms  were  attempted  through  the 
agency  of  these  supreme  laws.  Industrial  enfran- 
chisement compelled  a  reorganization  of  the  state, 
which  was  carefully  recorded  in  its  supreme  law. 
Democracy  is  equally  interested  in  the  state  and  in 

26 


The  Altruism  of  Democracy 

the  citizen.  Until  recent  years  it  seemed  inter- 
ested in  the  citizen  only.  It  tolerated  the  state  as 
an  evil  necessary  for  his  welfare.  The  history  of 
democracy  is,  therefore,  chiefly  of  the  citizen :  his 
theories,  his  complaints,  his  political  strivings,  his 
victories,  his  disappointments.  The  important 
chapters  in  that  history  are  on  the  franchise,  on 
representation,  on  the  powers  of  public  servants. 
The  state,  until  recent  years,  has  been  conceived  as 
a  creation  rather  than  an  organism ;  as  a  compact 
rather  than  as  an  entity.  Its  functions  are  large- 
ly a  discovery  of  the  nineteenth  century.  Some 
may  say  that  the  modern  state  is  not  so  much  a 
discovery  as  a  new  resolution  of  social  forces. 
Whatever  be  the  form  in  which  we  cast  the  thought, 
the  fact  remains — and,  in  this  country,  is  evident — 
after  comparing  the  last  State  constitutions  with 
the  first.  If  the  change  be  evolution,  it  is  from 
citizen  to  society;  from  the  concept  of  govern- 
ment, as  established  solely  for  the  benefit  of  the 
individual,  to  the  concept  of  the  community,  the 
state  as  a  being  responsible  to  every  citizen  and 
to  society.  The  state  has  rights  which  the  indi- 
vidual is  now  bound  to  respect.  Like  him,  it  is, 
or  should  be,  altruistic.  As  the  centuries  pass, 
the  American  commonwealths  will  revise  their 
constitutions.  Thus  far  there  has  been,  on  the 
average,  a  new  State  constitution  every  year  since 
1776.  Propositions  for  new  ones  have  been  more 
frequent ;  amendments,  a  common  occurrence. 
The  ease  with  which  amendments,  revisions,  or 
even  new  constitutions  are  secured,  suggests  that 

27 


Coiisiifiif/oihil  H/sforv  of  the  AnhTicaii  People 

the  people,  like  Jefferson,  regard  a  constitution 
as  of  little  higher  authority  than  an  act  of  the 
Legislature, 

Every  political  campaign  in  which  great  issues 
are  involv^ed  has  led  to  some  change  in  State  con- 
stitutions, and  not  infrequently  to  new  ones. 
This  was  conspicuous  between  1830  and  1840, 
when  franchise  reforms  that  had  been  agitated  for 
a  oreneration  were  embodied  in  constitutional  re- 
vision;  again,  from  i860  to  1870,  when  reforms  in 
the  franchise  and  in  the  basis  of  representation 
were  carried  into  every  constitution  in  the  country; 
and  again  from  1889  to  1895,  when  economic  re- 
forms affecting  labor,  transportation,  capital,  and 
the  franchise,  were  embodied  in  the  constitutions 
of  the  Northwestern  States.  Other  changes  have 
during  the  century  been  made  affecting  the  powers 
of  the  Legislature  and  of  Governors,  the  manner 
of  choosing  judges,  the  organization  of  the  ad- 
ministrative department,  finance,  education,  and 
local  government. 

As  has  been  said  of  the  state,  so  may  it  be  said 
of  all  these  changes — they  were  once  a  private 
thought.  It  is  the  purpose  of  a  history  of  democ- 
racy to  make  the  state  a  private  thought  again. 


CHAPTER   II 

THE   FORM    OF   DEMOCRACY   IN   THE 
EIGHTEENTH    CENTURY 

In  the  closing  years  of  the  seventeenth  century 
North  America  gave  little  promise  of  becoming  a 
continent  of  commonwealths.*  Along  the  Atlan- 
tic coast  extended  the  English  colonies,  inhabited 

*  The  principal  authorities  for  this  chapter  are  the  State  con- 
stitutions and  laws,  177 5-1 800,  and  the  proceedings  of  conven- 
tions during  this  period  : 

Maryland. — Proceedings  of  the  Conveniions  of  the  Province  of 
Maryland,  held  at  the  City  of  Annapolis  in  1774,  1775,  and  1776. 
Baltimore:  James  Lucas  &  E.  K.  Deaver.  Annapolis:  Jonas 
Green,  1836,  8vo,  378  pp. 

Massachusetts. — Journal  of  the  Convention  for  Framing  a 
Constitution  of  Government  for  the  State  of  Massachusetts  Bay, 
from  the  Commencement  of  their  First  Session,  September  i, 
1779,  to  the  Close  of  their  Last  Session,  June  16,  1780,  Including 
a  List  of  the  Members.  With  an  Appendix — containing:  i.  The 
Resolve  for  Ascertaining  the  Sense  of  the  People  on  the  Subject 
of  a  New  Constitution.  2.  The  Form  of  Government  Originally 
Reported  by  the  General  Committee  of  the  Convention.  3.  The 
Address  to  the  People.  4.  The  Constitution  as  finally  Agreed 
upon  by  the  Convention,  and  Ratified  by  the  People,  with  the 
Amendments  since  Adopted.  5.  The  Rejected  Constitution  of 
1778.  Published  by  Order  of  the  Legislature.  Boston:  Dutton 
&  Wentworth,  Printers  to  the  State,  1832,  8vo.  264  pp. 

New  Hampshire. — Journal  of  Colonial  Congress,  December  21, 
1775,  to  January  5,  1776.  Historical  Magazine,  October,  1868, 
pp.  145-1 54.  Collections  of  the  New  Hampshire  Historical  Society, 
Vol.  iv.    State  Papers  of  New  Hampshire,  Edited  by  Albert  Still- 

29 


Const  it  iiiioiidl  History  of  the  American  People 

by  about  three  hundred  thousand  people,  An_trlo- 
Saxon  stock  predominating — a  smaller  population 
than  may  now  be  found  in  some  Coni^ressional  dis- 
tricts.   England  claimed  territory  to  the  South  Sea, 

man  Batchellor,  Vols,  xx.,  xxi.,  xxii.  Provincial  Papers  of  New 
Hampshire,  Vols,  vii.,  viii.  Journal  of  the  Convention  which 
Assembled  in  Concord  to  Revise  the  Constitution  of  New  Hamp- 
shire, 1791-1792.  Edited  by  Nathaniel  Bouton,  D.D.  Concord: 
Edward  A.  Jenks,  State  Printer,  1876,  8vo,  198  pp. 

New  Jersey. — Extracts  from  the  Journal  of  Proceedings  of 
the  Provincial  Congress  of  New  Jersey,  held  at  Trenton  in  the 
months  of  May,  June,  and  August,  1775.  Published  by  Order.  Bur- 
lington: Printed  and  Sold  by  Isaac  Collins,  mucclxxv.,  Wood- 
bury, N.  J.  Reprinted  by  Order.  Joseph  Sailer,  Printer,  1835, 
8vo,  241  pp.  Journal  of  the  Votes  and  Proceedings  of  the  Con- 
vention of  New  Jersey,  Begun  at  Burlington,  the  tenth  of  June, 
1776,  and  thence  continued  by  Adjournment  at  Trenton  and  New 
Brunswick  to  the  twenty-first  of  August,  following.  To  which  is 
annexed  Sundry  Ordinances,  and  the  Constitution.  Published 
by  Order.  Burlington  :  Printed  and  Sold  by  Isaac  Collins, 
MDCCLXXVI.  Trenton  :  Reprinted  by  Order.  Joseph  Justice, 
Printer,  1831,  8vo,  100  pp.  Eumenes,  being  a  Collection  of  Pa- 
pers, written  for  the  Purpose  of  Exhibiting  some  of  the  more 
prominent  Errors  and  Omissions  of  the  Constitution  of  New 
Jersey,  as  Established  on  the  Second  day  of  July,  one  thousand 
seven  hundred  and  seventy-six  ;  and  to  prove  the  necessity  of 
Calling  a  Convention  for  Revision  and  Amendment.  Trenton: 
Printed  by  G.  Craft,  1799,  8vo,  149  pp. 

New  York. — Journals  of  the  Provincial  Congress,  Provincial 
Convention,  Committee  of  Safety,  and  Council  of  Safety  of  the 
State  of  New  York,  1775,  1776,  1777.  Albany  :  Printed  by  Thur- 
low  Weed,  Printer  to  the  State,  1842,  Vol.  i..  Large  Folio,  1196 
pp.  See  also  soine  account  of  the  making  of  the  New  York 
Constitution  of  1777  in  pp.  691-696  of  Reports  of  the  Proceedings 
and  Debates  of  the  Convention  of  1821,  Assembled  for  the  Pur- 
pose of  Amending  the  Constitution  of  the  State  of  New  York  : 
Containing  all  the  official  Documents  Relating  to  the  Subject, 
and  other  valuable  matter,  by  Nathaniel  H.  Carter  and  William 
L.  Stone,  Reporters  ;  and  Marcus  T.  C.  Gould,  Stenographer. 
Albany:  Printed  and  published  by  E.  &  E.  Hosford,  1821,  8vo, 
703  pp. 

30 


Contending  Forces  for  Supremacy 

but  was  not  in  possession  beyond  the  Alleghanies. 
From  these  mountains  westward  farther  than  any- 
white  man  had  explored,  was  New  France,  compris- 
ing the  vast  region  drained  by  the  rivers  St.  Law- 
North  Carolina. — The  Journal  of  the  Proceedings  of  the  Pro- 
vincial Congress  of  North  Carolina,  held  at  Halifax,  the  twelfth 
day  of  November,  1776,  together  with  the  Declaration  of  Rights, 
Constitution,  and  Ordinances  of  Congress.  Newbern :  Print- 
ed by  James  Davis,  1777,  Small  4to,  84  pp.  (Sabin,  394,  c. 
55.632). 

Pennsylvania. — The  Proceedings  Relative  to  Calling  the  Con- 
ventions of  1776  and  1790,  the  Minutes  of  the  Convention  that 
formed  the  Present  Constitution  of  Pennsylvania,  together  with 
the  Charter  to  William  Penn.the  Constitutions  of  1776  and  1790, 
and  a  View  of  the  Proceedings  of  the  Convention  of  1776,  and 
the  Council  of  Censors.  Harrisburg  :  Printed  by  John  S.  Wrest- 
ling, Market  Street,  1825,  8vo,  384  +  iv.  pp.  Minutes  of  the 
Convention  of  the  Commonwealth  of  Pennsylvania  which  com- 
menced at  Philadelphia,  on  Tuesday  the  twentj^-fourth  Day  of 
November,  in  the  year  of  our  Lord  one  thousand  seven  hundred 
and  eighty-nine,  for  the  Purpose  of  Reviewing,  and  if  they  see 
occasion.  Altering  and  Amending  the  Constitution  of  this  State. 
Philadelphia :  Printed  by  Zachariah  Poulson,  Jr.,  in  Fourth 
Street,  between  Market  Street  and  Arch  Street.  mdCCLXXXIX., 
folio,  First  Session,  147  pp.;  Second  Session,  147-222.  Minutes  of 
the  Grand  Committee  of  the  Same,  folio,  107  pp. 

Tennessee. — Journal  of  the  Proceedings  of  a  Convention  Begun 
and  Held  at  Knoxville,  January  11,  1796.  Knoxville  :  Printed  by 
George  Roulstone,  1796.  Nashville:  Reprinted  by  McKennie 
&  Brown,  True  W/n^  Office,  1852,  8vo,  32  pp. 

Vermont. — Vermont  State  Papers,  being  a  Collection  of  Rec- 
ords and  Documents  connected  with  the  Assumption  and  Es- 
tablishment of  Government  by  the  People  of  Vermont,  together 
with  the  Journal  of  the  Council  of  Safety,  the  first  Constitution, 
the  early  Journals  of  the  General  Assembly,  and  the  Laws  from 
the  year  1779  to  1786  inclusive.  To  which  are  added  the  Pro- 
ceedings of  the  First  and  Second  Councils  of  Censors.  Compiled 
and  published  by  William  Slade,  Jr.,  Secretary  of  State.  Middle- 
burg:  J.  W.  Copeland,  Printer,  1823,  8vo,  567  pp.  Collections  of 
the  Vermont  Historical  Societ3^  Vol.  i.  Montpelier:  Printed  for 
the  Society,  1870,  508  pp.     Vol.  ii.,  Id.,  1871,  530  pp.     In  Vol.  i., 

31 


Const  it  lit  ioiial  History  of  the  Aimrican  People 

rence  and  Mississippi  and  their  tributaries.  Farther 
southward  and  westward  lay  New  Spain,  greater 
in  area  than  New  France.  The  English  feared 
two  foes — absolutism  and  the  papacy,  and  were  on 
the  defensive.  The  struggle  which  for  centuries 
had  raged  in  the  Old  World  between  absolutism 
and  democracy  broke  out  in  the  New  at  the  close 
of  the  seventeenth  century.  Antagonistic  systems 
of  gov^ernment  were  contesting  for  the  possession  of 
America.  In  the  English  colonies  were  the  germs 
of  representative  government  and  free  common- 
wealths. The  fate  of  half  the  globe  depended 
on  what  victories  might  be  won  in  the  Ohio  Val- 
ley. In  decisive  results,  Wolf's  victory  on  the 
Heights  of  Abraham  was  to  take  rank  with 
Marathon  and  Cannae.  Probably,  the  pioneers 
who,  during  the  long  campaign  from  Braddock's 
defeat    to    Yorktown,   won    America    for    liberty 

the  Conventions  of  1776-1777.  In  Vol.  ii.,  Vermont  as  a  Sover- 
eign and  Independent  State. 

Virginia. — The  Proceedings  of  the  Convention  of  Delegates 
for  the  Counties  and  Corporations  in  the  Colony  of  Virginia, 
held  at  Richmond  Town,  in  the  County  of  Henrico,  on  the  20th 
of  March,  1775.  Reprinted  by  a  Resolution  of  the  House  of  Del- 
egates, of  the  24lh  February,  1816.  Richmond:  Richie,  True- 
heart  &  Du-Val,  Printers,  1816,  folio,  54  pp.  The  Proceedings 
of  the  Same  on  Friday,  the  ist  of  December,  1775,  and  after- 
wards by  Adjournment  in  the  City  of  Williamsburg,  Id.  and  lb., 
folio,  116  pp.  The  Proceedings  of  the  Same  in  Williamsburg,  on 
Monday,  the  6th  of  May,  1776,  Id.  and  lb.,  folio,  86  pp.  Ordi- 
nances Passed  at  a  General  Convention  of  Delegates  and  Repre- 
sentatives from  the  several  Counties  and  Corporations  of  Vir- 
ginia, held  at  the  Capitol  in  the  City  of  Williamsburg,  on  Monday, 
the  6th  of  May,  Anno  Dom..  1776.  Reprinted  by  a  Resolution 
of  the  House  of  Delegates,  of  the  24th  February,  1816.  Rich- 
mond, supra,  folio,  19  pp. 

32 


Growth  of  Popular  Government 

never  compassed  the  magnitude  of  the  drama  in 
which  their  sufferings  and  their  victories  were 
early  scenes.  They  were  men  much  like  our- 
selves, and  the  emotions  that  stirred  their  lives,  the 
services  they  rendered,  the  ideas  for  which  they 
contended,  the  record  which  they  made  in  found- 
ing new  States  and  a  new  nation  are  elemental 
forces  in  democracy  in  America  to-day.  They 
bequeathed  to  us  the  heritage  of  representative 
government 

Time  has  obscured  their  action,  as  it  obscures 
the  deeds  of  all  men.  But  the  political  institu- 
tions which  sprang  up  after  them,  though  feeble 
and  isolated  at  first,  unwelcome  to  the  govern- 
ments of  the  Old  World,  and,  when  by  necessity  ac- 
knowledged as  a  new  power,  coldly  received  into 
the  family  of  nations,  were  destined  to  overspread  a 
continent  and  to  demonstrate,  for  the  first  time, 
the  vitality  and  efficiency  of  popular  government 
on  a  vast  scale.  During  the  seventeenth  century, 
and  the  greater  part  of  the  eighteenth,  the  col- 
onies prospered  under  charters  granted  by  the 
Crown  and  in  substance  differing  little  one  from 
another.  The  charter  to  Penn  contained  a  unique 
provision  recognizing  the  right  of  Parliament  to 
levy  a  tax  on  the  colony.*  Most  fateful  for  the 
colonies  was  the  privilege  of  the  Assemblies  to  pass 
laws  that  should  conform  as  nearly  as  possible 
with  the  laws  of  England.     Here  was  the  entering 

*  Charter  to  Penn,  March  4,  1681,  sec.  20.  Proceedings  of 
conventions  of  1776  and  1789.  Pennsylvania,  Harrisburg,  1825, 
p.  16. 


Constitutional  History  of  the  American  People 

wedge  of  democracy  in  America.  Gradually,  and 
it  may  be  said  naturally,  the  Assemblies  assumed 
the  right  to  judge  when  a  law  should  be  more 
American  than  English.  This  claim  of  right  was 
the  foundation  of  American  independence. 

From  their  incorporation,  therefore,  the  colonies, 
though  fairly  uniform  in  general  character,  tended 
to  differ  among  themselves  in  local  government. 
The  local  spirit  was  from  the  first  stronger  than 
the  continental,  and  doubtless  would  have  prevailed 
had  not  James  the  Second  attempted  to  merge  the 
colonies  into  groups,  each  having  its  civil  system, 
with  ultimate  merger  in  a  government  whose  ex- 
ecutive and  judiciary  should  be  appointed  by  the 
Crown  ;  whose  common  Assembly,  though  elected 
by  the  people,  should  be  stripped  of  all  discre- 
tionary authority.  To  the  colonists  this  was  ab- 
solutism, and,  consciously  or  unconsciously,  their 
opposition  to  it  awakened  a  continental  spirit,  the 
parent  of  the  national  idea.  Thus,  before  the  close 
of  the  seventeenth  century  America  was  at  the 
threshold  of  a  new  civil  experience,  the  distinguish- 
ing: feature  of  which  was  the  formulation  of  the 
"  ancient  and  undoubted  rights  of  the  people  of 
the  colonies."  A  like  process  was  going  on  in 
England.  The  famous  Bill  of  Riohts  of  1688  is  con- 
temporaneous  with  like  measures  in  the  colonies. 
Americans  are  more  familiar  with  the  political 
speculations  that  dominated  the  country  in  1776 
than  with  those,  equal  in  influence,  that  dominated 
it  nearly  a  century  earlier.  One  clause  of  the  Eng- 
lish bill  of  1688  survives  in  its  original  form  in  the 

34 


Forebodings  of  the  Revolution 

Constitution  of  the  United  States,*  and  in  many 
State  constitutions  ;  but  it  was  not  accompanied  in 
the  seventeenth  century  by  those  provisions  with 
which  it  is  now  associated.  Freedom  of  worship, 
freedom  of  speech,  and  freedom  of  the  press  are 
rights  which  were  worked  out  in  this  country — 
that  is  to  say,  they  were  worked  out  in  that  Anglo- 
Saxon  world  which  is  divided  into  two  parts — Eng- 
land and  America.  They  are  rights  which  in  no 
sense  are  of  Celtic  or  Latin  origin.  On  them,  and 
those  soon  worked  out  with  them,  rests  all  consti- 
tutional government  in  America.  The  New  York 
Assembly  in  1689,  in  spite  of  the  opposition  of 
the  Crown,  set  forth  for  the  first  time  in  a  formal 
bill  on  this  continent  those  rights  which  became 
the  foundation  for  political  ideas  involved  in  the 
American  Revolution.!  This  Assembly  was  the 
parent  of  that  portion  of  the  American  constitu- 
tions of  government  which  we  call  the  Declaration 
of  Rights — the  most  permanent  part  of  our  civil 
system.  The  ideas  involved  in  them  were  the 
issue  in  the  struggle  of  England,  France,  and 
Spain  for  the  possession  of  America.  The  first 
phase  of  this  struggle  was  international,  and  closed 
with  the  treaty  of  Paris  and  the  disappearance  of 
New  France  from  the  map  of  America.  Thirteen 
years    passed    and    a    new   name    appeared  —  the 

*  Art.  viii. 

t  In  most  of  the  charters;  those  of  Virginia  (1606)  and  Mas- 
sachusetts (1629)  are  typical.  The  Assemblies  early  began  to 
"confirm  the  charters" — z.e.,  Magna  Charta  and  the  Charter  of 
the  Forest  —  as  in  Rhode  Island,  1663;  North  Carolina,  twenty- 
five  times,  etc.     See  Martin's  Laws,  North  Carolina,  1792. 

35 


Constitutioual  Hisforv  of  the  American  People 

United  States.  Colonies  had  become  commun- 
wealtlis,  organized  on  the  basis  of  these  ancient 
rights  which,  save  in  Rhode  Island,  had  been 
formally  adopted  as  the  essential  part  of  a  written 
constitution.  Each  proposition  recorded  a  victory 
of  democracy  over  monarchy  —  of  individualism 
over  absolutism.  Therefore  every  clause  is  a  sur- 
vival, in  brief, of  struggles  that  go  back  well  towards 
the  earliest  moments  of  recorded  time.  Bills  of 
rights,  the  portion  of  the  supreme  law  which  seems 
to  many  trite,  if  not  superfluous,  are  the  summary 
of  ages  of  struggle  for  human  rights.  In  America, 
the  Virginia  bill,  compiled  chiefly  by  George 
Mason,  records  the  close  of  an  initial  chapter  in 
the  history  of  democracy.  We  shall  see,  later,  how 
the  chapter  has  been  continued,  and  from  what 
sources  it  is  derived.  Each  generation  of  Ameri- 
cans has  added  to  it.  Individualism — and,  later, 
communalism — are  there.  In  our  day  the  grinding 
necessity  of  industrial  morality  is  adding  clauses 
of  a  nature  undreamed  of  when  the  New  York 
Assembly  enacted  its  epoch-making  bill,  or  when, 
a  little  less  than  a  century  later,  Mason  wrote  the 
Virginia  Declaration.  In  the  State  constitutions 
many  provisions  respecting  the  legislative,  the  ex- 
ecutive, and  the  judiciary  prove  to  be  temporary. 
Nearly  every  provision  in  the  various  declarations 
of  rights  has  proved  to  be  essential  to  the  stabil- 
ity of  representative  government.  The  growth  of 
our  bills  of  rights  is,  therefore,  indexical  of  the 
charter  of  the  American  state. 

As   France    and    Spain,   in    turn,   retired    from 

36 


state  Constitutions  the  Product  of  Time 

North  America,  the  English-speaking  race  was 
left  with  a  continent  on  its  hands  whereon  repre- 
sentative government  might  freely  develop.  This 
opportunity  of  democracy  is  without  parallel  in 
history.  For  the  first  time,  as  events  proved,  pop- 
ular government  on  a  vast  scale  was  to  be  put  to 
the  test.  When  the  transition  from  colonies  to 
commonwealths  came,  it  seems,  at  first  glance,  al- 
most instantaneous.  The  State  constitutions  of 
1776  seem  struck  off  at  a  single  stroke  in  a  sense 
that  is  not  true  of  the  national  Constitution.  A 
little  reflection,  however,  will  demonstrate  that  the 
constitutions,  State  and  national,  which  distinguish 
America  during  the  last  quarter  of  the  eighteenth 
century  are  in  no  sense  political  miracles  or  the 
product  of  chance  or  sudden  ideas.  These  instru- 
ments must  be  taken,  in  the  aggregate,  as  the 
written  form  of  a  political  organism  long  growing 
and  essentially  homogeneous.  They  give  the  po- 
litical fabric  a  common  pattern.  They  register 
the  civil  experience,  not  of  the  colonists  only,  but 
of  the  people  of  other  and  earlier  times.  They 
may  be  called  chapters  in  the  Bible  of  politics 
contributed  by  democracy  in  America.  There- 
fore, they  must  be  considered  together  as  a  politi- 
cal unit,  whose  details  are  local  applications  of  a 
few  common  principles  contained  in  the  bills  of 
rights. 

These  constitutions  have  a  common  origin  in 
experience  and  speculation — the  experience  chiefly 
that  of  the  colonists  themselves ;  the  speculation 
that  of  a  few  philosophers,  of  whom  Montesquieu 

37 


CoiislHiitional  History  of  the  American  People 

was  most  influential.  Gradually  the  ancient  civil 
rights  of  Englishmen,  made  familiar  by  charters, 
came  to  be  considered  as  natural.  Long  exercise 
of  charter  rights  made  the  notion  easy — however 
unphilosophical.  Colonial  isolation  compelled  a 
liberal  interpretation  of  the  clause  in  the  charters 
permitting  Assemblies  to  pass  laws  as  nearly  as 
may  be  in  conformity  with  the  laws  of  England. 
There  could  be  but  one  consequence — the  Ameri- 
cans would  ultimately  claim  that  their  own  Assem- 
blies possessed  the  exclusive  right,  constitution- 
ally, to  impose  taxes,  and  that  local  circumstances 
forbade  colonial  representation  in  Parliament. 

The  Americans  had  a  century  and  a  half  of 
experience  in  popular  government  when  the  first 
State  constitutions  were  made.  During  this  time 
they  worked  out  the  principles  embodied  in  their 
first  bills  of  rights,  and  accumulated  an  admin- 
istrative experience  which  they  reduced  to  three 
workino^  formulas :  the  articles  on  the  leo^islative, 
on  the  executive,  and  on  the  judiciary.  These  ar- 
ticles are  essentially  a  political  photograph  of  the 
colonial  governments  in  those  last  days,  just  be- 
fore transformation  into  States.  But  it  must  not 
be  forgotten  that  the  photograph  was  corrected, 
as  it  were,  by  adding  ideals.  Compared  with  con- 
stitutions made  at  the  close  of  the  nineteenth  cen- 
tury, these  of  the  eighteenth  seemed  colonial  rath- 
er than  commonwealth  in  character. 

In  as  far  as  they  departed  from  colonial  expe- 
rience, they  show  the  influence  of  Montesquieu. 
His  Spirit  of  Laws  was  published  in  1748,  and  its 

;8 


Montesqineii' s  Influence  on  Our  Constitution 

influence  on  America  was  like  that  of  Aristotle's 
Politics  on  the  institutions  of  Europe.  The  com- 
monwealth constitutions  of  the  eighteenth  cen- 
tury were  made,  nominally,  by  conventions,  though 
in  many  instances  by  Legislatures.  It  may  be  said 
that  the  twenty-six  constitutions  of  the  period  were 
thought  out  by  about  the  same  number  of  men — 
the  most  eminent  Americans  of  the  age.  Most  of 
these  met  in  the  convention  that  made  the  na- 
tional Constitution.  They  had  already  partici- 
pated in  a  similar  work  for  their  own  States,  and 
some  of  them  assisted  in  revising  their  State 
constitutions  after  the  national  Constitution  was 
adopted  and  the  new  government  was  established. 

To  these  men  the  Spirit  of  Laws  was  a  manual 
of  politics  powerfully  contributing  to  a  general 
unity  of  sentiment  in  the  State  instruments,  and 
particularly  in  the  Constitution  of  the  United 
States.  In  spite  of  popular  disbelief,  it  is  the  phil- 
osophical thinker  who  regulates  the  form  of  the 
state.  He  works  out  a  civil  economy,  which,  cor- 
rected by  popular  experience,  at  last  becomes  the 
form  of  government  in  the  state.  Of  less,  though 
of  great  influence  on  American  institutions,  were 
Milton,  Hobbes,  Locke,  Sidney,  Harrington,  and 
Penn.  The  best  of  their  political  speculations 
became  the  common  intellectual  property  of 
thoughtful  Americans,  and  in  political  form  were 
incorporated  in  the  constitutions  of  the  eigh- 
teenth century,  and,  slightly  modified,  are  found 
in  all  that  have  been  adopted  since. 

Twenty  -  five    years    later   than    Montesquieu's 

39 


Const  it  iii  ion  al  History  of  t/je  American  People 

Spirit  of  Laws,  appeared  Blackstone's  Commenta- 
ries— destined  at  once  to  become  the  principal 
legal  text-book  of  the  English  race.  In  spite  of 
its  ultra  -  monarchical  ideas,  it  profoundly  influ- 
enced American  political  thought.*  Montesquieu 
was  speculative ;  Blackstone,  practical  and  defini- 
tive. The  Commentaries,  as  did  no  other  book,  as- 
sisted American  statesmen  in  giving  legal  form  to 
democratic  ideas  of  government.  The  American 
Revolution  would  have  wholly  miscarried  had  its 
principles  failed  to  attain  expression  in  legal 
form :  so  much  are  men  controlled  by  appear- 
ances. This  is  well  illustrated  in  a  statement  in 
the  Declaration  of  Independence,  and  repeated  in 
every  State  constitution,  that  the  people  have  the 
right  to  alter  or  abolish  any  form  of  government 
that  they  judge  destructive  of  their  rights.  All 
the  eighteenth-century  writers  emphasize  the  im- 
portance of  the  form  of  the  government;  the  form 
is  considered  as  essential  to  the  right  exercise  of 
civil  functions.  Though  acknowledging  the  right 
of  the  people  to  change  the  form,  neither  the  con- 
stitutions of  the  period  nor  the  writers  upon  them 
hint  at  any  right  to  alter  or  abolish  the  principles 
on  which  the  form  rests.  That  the  monarchical 
Blackstone  so  practically  contributed  to  the  es- 
tablishment of  democracy  in  America  is  a  para- 
dox not  without  parallel  in  history. 

Two  other  English  philosophers  whose  works 


*  The  first  American  edition,  in  four  volumes,  was  brought  out 
in  Philadelphia,  by  Robert  Bell,  in  1771. 

40 


l/oltaire  and  Franklin  Considered 

appeared  with  Blackstone's,  at  the  outbreak  of  the 
Revokition,  profoundly  influenced  American  insti- 
tutions. Hume  anticipated  both  the  French  and 
the  American  revolutions,  and  Adam  Smith*  antic- 
ipated the  economic  course  of  American  life.  The 
most  subtle  influence  on  America  was  wielded  by 
him,  to  whom,  says  Lowell,  "  more  than  to  any 
other  one  man  we  owe  it  that  we  can  now  think 
and  speak  as  we  choose."!  Voltaire's  influence  was 
that  of  an  institution  rather  than  that  of  an  in- 
dividual. It  largely  contributes  to  that  seculari- 
zation of  the  state  which  distinguishes  government 
in  America  from  all  other  governments,  ancient 
or  modern. 

America  was  not  lacking  instruction  from  a 
philosopher  of  native  birth,  Franklin,  who  was 
scarcely  less  influential  than  any  of  his  contempo- 
raries.^  The  characteristic  of  the  political  thought 
of  the  age  was  individualism.  The  state  was  called 
into  existence  to  protect  the  individual.  This  is 
the  dominant  idea  of  every  bill  of  rights  of  the 
eighteenth  century,  and  indeed  of  all  until  recent 
years.  The  state  is  not  described  at  that  time  as 
having  "  ancient  and  undoubted  rights  "  which  the 


*  Washington  annotated  his  copy  of  Smith,  showing  careful 
reading.  It  now  belongs  to  Joseph  Wharton,  Esq.,  of  Philadel- 
phia. For  an  estimate  of  the  influence  of  The  Wealth  of  Nations, 
see  Lecky's  History,  Vol.  iv.,  p.  328. 

t  Latest  Literary  Essays  {Gray),  1892,  p.  12. 

I  Smith  read  chapters  of  The  Wealth  of  Nations  to  Doctor 
Franklin,  as  it  was  composed,  for  his  criticism.  This  may  ex- 
plain the  numerous  allusions  to  America  in  the  work.  See  Wat- 
son's Afinals  of  Philadelphia,  Vol.  i.,  p.  533. 

41 


Constitutional  History  of  the  American  People 

individual  must  respect.  He  was  the  centre  of  the 
political  system.  The  altruistic  function  of  the  in- 
dividual citizen  which  is  implied  and  occasionally 
expressed  in  the  later  constitutions  was  not  thought 
of  in  Franklin's  day,  and  it  was  a  long  day  from 
the  accession  of  Queen  Anne  to  the  death  of 
Franklin.  His  ideas  are  characteristic  of  a  cen- 
tury later,  in  that  he  emphasized  the  administra- 
tion rather  than  the  theory  of  government.  His 
oft-quoted  speech  in  the  Federal  Convention,  in 
which  he  said  that  there  is  no  form  of  government 
that  may  not  be  a  blessing  to  the  people  if  well 
administered,  suggests  the  test  to  which  every 
political  proposition  must  at  last  be  subjected. 
It  is  the  test  which  best  discloses  the  difference 
between  the  American  and  the  French  constitu- 
tions of  government.  Ours  rarely  contains  a  def- 
inition, and  more  rarely  political  speculation,  but 
is  practical  and  administrative  in  character.  Be- 
cause of  this  quality,  the  national  Constitution  has 
survived  the  fiercest  test  to  which  it  is  possible 
to  submit  a  political  system,  the  ordeal  of  civil 
war.  Had  it  been  a  document  abounding  in  po- 
litical speculation  it  would  now  be  known  only  to 
the  collector  of  curious  schemes  of  government. 
Franklin's  individualism  ultimately  found  political 
application  in  the  essential  doctrines  of  that  great 
party  of  which  Jefferson  is  commonly  called  the 
founder.  His  influence  for  this  reason  has  been, 
and  to  this  day  is,  confounded  with  that  of  Jeffer- 
son and  Voltaire.  It  differed  from  theirs  in  be- 
ing more  conservative.     Its  conservatism  consisted 

42 


Jefferson  and  the  Rights  of  Man 

in  its  sanity.  His  conception  of  government  was 
one  based  on  experience  and  "  adapted  to  such  a 
country  as  ours."  The  import  of  Frankhn's  em- 
phasis of  the  administrative  test  is  seen  in  the 
constitutions  adopted  after  1850,  in  which  the  ad- 
ministrative gradually  appears  as  a  separate  arti- 
cle. After  1876  it  begins  to  be  recognized  as 
the  fourth  department  of  government,  ranking 
with  the  legislative,  the  executive,  and  the  judi- 
ciary. The  history  of  this  new  department  is  one 
of  civil  adjustments.  To  ascertain,  readily,  the  im- 
portant changes  in  our  political  institutions  since 
1776,  one  must  turn  to  the  administrative  provi- 
sions of  State  constitutions  last  adopted  and  trace 
their  growth  from  constitution  to  constitution 
during  the  intervening  years. 

In  later  years,  when  the  very  form  of  a  State 
constitution  became  a  party  question,  the  influ- 
ence of  Jefferson  largely  dominated  American 
thought.  He  stood  for  the  rights  of  man  as  these 
were  expressed  in  the  Declaration  of  Indepen- 
dence, or  were  read  into  it  by  party  interpretation. 
During  the  eighteenth  centur}-  his  influence  fell 
far  short  of  what  it  became  after  the  party  he  was 
instrumental  in  organizing  obtained  possession  of 
the  national  government.  During  the  half  cen- 
tury following  his  death,  when  in  one  form  or  an- 
other slavery  and  State  sovereignty  were  national 
issues,  and  the  extension  of  the  franchise  and  the 
change  from  property  to  persons  as  the  basis 
of  representation  were  State  issues,  JefTerson  was 
idealized  as  the  political  philosopher  and  reformer, 

43 


Consiiliilioiial  H/sfo/y  of  the  American  People 

and  his  ideas,  as  interpreted  by  a  powerful  party, 
were  of  paramount  influence  in  many  States.  But 
his  influence  was  always  strongest  in  the  newer 
parts  of  the  country.  The  Declaration  of  Inde- 
pendence was  almost  immediately  accepted  as  a 
national  bill  of  rights ;  it  was  cited  in  several  State 
constitutions,  and  was  prefixed  without  change  to 
the  constitution  of  New  York  of  1777. 

The  Revolution  was  a  reconstruction  of  the  the- 
ory of  the  state.  Henceforth  the  rights  of  men 
should  be  considered  to  be  natural  and  inherent, 
and  not,  as  before,  a  grant  from  the  Crown.  In 
England,  the  Revolution  of  1688  resolved  the  state 
into  a  constitutional  monarchy  ;  in  America,  a  cen- 
tury later,  it  was  resolved  into  a  representative  de- 
mocracy. The  change  implied  a  far-reaching 
reorganization.  The  concept  of  sovereignty  was 
shifted  to  new  ground.  The  common  law  was  in- 
applicable to  the  new  order.  Written  constitu- 
tions and  statutes  were  necessary  to  give  legality 
to  the  new  concept.  Had  there  been  no  change 
in  the  idea  of  sovereignty,  there  would  have  been 
no  written  constitutions  in  America.  The  bills 
of  rights  settled  the  question  of  sovereignty.  The 
will  of  a  majority  of  the  electors  became  the  Amer- 
ican sovereign.  The  written  constitution  was  de- 
vised to  secure  the  new  dynasty  and  prevent  an 
interregnum.  Primarily  the  purpose  was  to  pre- 
serve the  authority  of  the  majority,  and  constitu- 
tions prescribed  the  conditions  for  belonging  to 
the  new  sovereignty  by  defining  the  electorate ; 
they   also   regulated   the   general   conduct   of  the 

44 


M^hen  All  Were  for  the  State 

sovereign  by  defining  the  basis  of  representation 
and  the  function  of  the  executive  and  the  judi- 
ciary. 

The  change  from  monarchy  to  democracy  in- 
volved the  adoption  of  legal  fictions  as  dynastic 
facts.  It  compelled  the  adoption  of  what  was 
familiarly  called,  in  the  eighteenth  century,  the 
system  of  checks  and  balances.  The  government 
— the  state — must  be  secured  against  the  folly,  the 
designs,  the  passions  of  those  who  compose  it. 
As  was  said — the  people  must  be  protected  against 
themselves.  The  twenty-six  constitutions  of  the 
eighteenth  century  were  made,  therefore,  to  be  in- 
dependent of  political  parties.  They  should  be 
administrable  with  advantage  to  the  state  what- 
ever party  might  be  in  power.  This  accounts  for 
the  silence  as  to  parties  in  all  the  eighteenth-cen- 
tury conventions.  We  know  little  of  what  was 
done  and  less  of  what  was  said  in  the  State  con- 
ventions of  that  time.  The  debates  in  the  federal 
convention,  as  they  have  come  down  to  us,  con- 
tain scarcely  a  reference  to  political  parties.  But 
there  is  abundant  evidence  that  all  the  conven- 
tions sought  to  conserve  government  by  an  elab- 
orate system  of  checks  and  balances  in  a  written 
constitution.  John  Adams,  in  his  exhaustive  dis- 
cussion of  the  American  constitutions,  makes  the 
device  of  checks  and  balances  the  chief  merit  of 
the  American  system  of  government.  Hamilton, 
Madison,  and  Jay,  in  The  Federalist,  exalt  the  de- 
vice as  the  guarantee  of  republican  government. 
The  same   idea  is  elaborated    later   by  Marshall, 

45 


ConstHiitioiial  History  of  the  American  People 

Webster,  and  Calhoun.  After  1850  less  is  heard 
of  checks  and  balances  in  our  government,  and  in 
our  day  the  phrase  is  not  in  use  among  the  peo- 
ple and  has  dropped  out  of  the  vocabulary  of 
politics.  The  men  who  made  the  first  constitu- 
tions emphasized  the  device  because  they  vi^ere 
compelled  to  adopt  a  substitute  for  administrative 
experience.  The  new  constitutions  were  at  best 
only  experiments.  None  of  them  worked  wholly 
as  was  anticipated.  It  is  only  necessary  to  cite 
in  illustration  the  electoral  college  and  the  origi- 
nal, unlimited  grant  of  power  to  the  State  Legisla- 
tures. But  even  the  exception  proved  the  rule, 
and  the  constitutions  proved  on  the  whole  adminis- 
trable  and  satisfactory.  The  State  has  been  con- 
served, and  the  purposes  for  wiiich  the  constitu- 
tions were  framed  —  typically  set  forth  in  the 
preamble  to  the  national  Constitution — have  been 
fairly  well  realized.  Statesmen  of  the  eighteenth 
century  would  impute  this  to  the  efficacy  of  the 
system  of  checks  and  balances.  By  this  they 
meant  the  distinct  functions  of  the  executive,  the 
legislative,  and  the  judiciary;  the  different  ways  in 
which  they  are  chosen ;  the  different  times  when 
they  hand  over  their  power  to  their  successors ; 
the  peculiar  combination  of  the  legislative  and  the 
executive  in  the  administration  of  government,  and 
the  ultimate  responsibility  of  all  public  servants  to 
the  electors. 

This  correlation  of  parts  and  functions  is  the 
peculiarity  of  the  American  S3^stem.  Though 
arbitrary  and  ever  subject  to  modification  at  the 

46 


Present  Concepts  of  American  Institntions 

will  of  the  people,  the  system  has  been  tried  with 
success,  has  never  departed  from  the  principles  on 
which  it  was  founded,  and  has  strengthened  the 
conservatism  which  ever  underlies  American  poli- 
tics. 

One  commenting  on  government  in  America 
to-day  would  not  be  likely  to  call  attention  to, 
much  less  to  emphasize,  the  system  of  checks  and 
balances.  He  would  attribute  the  virtue  of  our 
institutions  to  economic  and  sociological  causes. 
He  would  dwell  on  the  people,  not  on  the  system. 
He  would  analyze  political  parties,  public  opinion, 
and  our  social  institutions.  He  would  not  be 
likely  even  to  use  the  term  checks  and  balances. 
In  the  eighteenth  century  government  was  con- 
ceived as  a  device ;  in  our  times  it  is  thought  of 
rather  as  an  organism.  It  is  the  content,  not  the 
language,  of  the  Constitution  that  has  changed. 
The  supreme  law,  as  time  goes  on,  is  given  more 
and  more  an  economic  interpretation.  If  adapted 
to  the  wants  of  the  country,  such  interpretation 
becomes  a  party  doctrine,  and  if  adopted  by  the 
majority,  it  becomes  an  administrative  measure. 
If  it  is  believed  to  involve  essential  rights,  it  may 
become  a  part  of  a  revised  constitution.  Thus, 
at  last,  the  constitutions  become  the  depository 
of  settled  politics  and  the  register  of  the  growth 
of  the  State. 

The  basis  for  legal  defence  of  the  Revolution 
was  the  claim  by  the  Americans  that  King  George 
had  violated  the  compact  to  which  he  and  the  col- 
onies were  parties.     It  was  first  broached  in  1774 

47 


Const  it  111  ional  History  of  the  American  Pcopie 

in  the  Suffolk  Convention,*  and  was  quickly  rec- 
ognized by  Adams  and  Otis  as  the  place  of  be- 
crinninor  in  estabHshins:  lei^al  boundaries  for  the 
Revolution.  It  in  great  measure  explains  why 
American  constitutions  began  with  this  definition 
of  the  state  as  a  social  compact.  Coupled  with  the 
doctrine  of  natural  rights,  the  social-compact  the- 
ory proved  administrable.  On  these  two  ideas 
government  in  America,  both  State  and  national, 
rests.  When  the  transition  from  colony  to  com- 
monwealth was  effected,  two  years  later,  and  the 
first  constitutions  were  made,  these  two  ideas  be- 
came the  nucleus  of  government.  In  this  way 
the  Americans  succeeded,  at  least  to  their  own 
satisfaction,  in  putting  the  King  in  the  wrong. 
They  declared  that  he  had  violated  the  compact, 
and  therefore  all  political  connection  with  Great 
Britain  was  dissolved.  The  colonies  claimed  that, 
thus  left  in  a  state  of  nature,  they  were  free  to 
organize  governments  to  suit  themselves.  If  not 
sovereign,  they  were  free  and  independent.  New 
Jersey,  the  first  to  adopt  a  constitution,  and  South 
Carolina,  made  provision  that  if  Great  Britain 
adjusted  colonial  differences,  their  constitutions 
should  be  of  no  effect.!  With  these  two  excep- 
tions, the  colonies  entered  upon  the  organization 
of  State  governments.     The   permanent  features 

*  Journals,  Provincial  Congress,  Massachusetts,  p.  6oi  ;  and, 
specially,  of  the  Hampshire  Convention,  p.  619.  For  definition 
of  the  "social  compact"  see  Constitutions,  Massachusetts,  1780; 
Maryland,  1776;  Kentucky,   1792,  1799. 

t  New  Jersey,  South  Carolina,  New  Hampshire,  1776;  all  con- 
ditional constitutions. 

48 


All  Authority  Emanates  from  the  People 

of  these  constitutions  were  their  declarations  of 
rights  and  the  threefold  division  of  government. 
In  the  aggregate,  the  declarations  comprise  about 
one  hundred  provisions,  all  of  which  are  not 
found  in  any  one  constitution.  The  typical  dec- 
laration is  that  of  Virginia  of  1776,  which,  by 
repeated  adoption,  has  long  since  become  com- 
mon, civil  property.*  It  consists  of  sixteen  ar- 
ticles, all  of  which  rest  for  authority  on  the  doc- 
trine of  natural  rights  proclaimed  in  the  opening 
clause.  Men  cannot  be  deprived  of  their  rights, 
nor  can  they  deprive  their  posterity  of  them; 
all  power  is  vested  in  the  people,  and  is  derived 
from  them.  Consequently,  their  representatives 
are  their  trustees  and  servants,  and  at  all  times 
amenable  to  them.  As  government  is  instituted 
for  the  common  benefit,  it  must  be  organized  in 
the  form  that  is  best  "capable  of  producing  the 
greatest  degree  of  happiness  and  safety,  and  is 
most  effectually  secured  against  the  dangers  of 
maladministration."  It  follows  that,  if  the  form 
of  the  government  does  not  subserve  this  end,  the 
"  majority  of  the  community  have  an  indubitable, 
inalienable,  and  indefeasible  right  to  reform,  alter, 
or  abolish  it  in  such  manner  as  shall  be  judged 
most  conducive  to  the  public  weal."  No  man  can 
be  conceived  to  be  "entitled  to  exclusive  or  sepa- 
rate emoluments  or  privileges  from  the  community 

*  See  Grigsby's  Virginia  Convention,  1776;  Richmond,  1855; 
also  Joint  Resolution  of  Virginia  Legislature  accepting  manu- 
script of  this  Declaration  of  Rights  in  Mason's  handwriting, 
and  depositing  it  in  State  archives,  February  15,  1844. 

I.— D  49 


Constitutional  History  of  the  American  People 

but  in  consideration  of  public  service."  The  same 
doctrine  also  compels  the  conclusion  that  official 
emoluments  and  privileges  are  not  descendible, 
and  that  the  office  of  magistrate,  legislator,  or 
judge  cannot  be  hereditary. 

The  doctrine  of  natural  rights  applied  in  ad- 
ministration compels  the  separation  of  legislative, 
executive,  and  judicial  pov/ers.  Elections  must  be 
frequent  that  the  sovereign  people  may  the  more 
perfectly  express  their  will  in  the  choice  of  public 
servants.  There  must  be  rotation  in  office.  In 
order  to  secure  equity  in  the  administration  of  the 
government,  elections  must  be  free  and  the  elec- 
torate accurately  defined ;  but  the  Virginia  decla- 
ration went  no  further  than  to  include  in  it  all 
men  having  sufficient  evidence  of  permanent,  com- 
mon interest  with  the  community,  and  attachment 
to  it:  by  which  was  meant  a  property  qualification. 
These  are  entitled  to  the  right  of  suffrage.  No 
man  can  be  taxed  or  deprived  of  his  property  for 
public  uses  without  his  own  consent  or  that  of  his 
chosen  representatives.  The  doctrine  of  the  right 
of  revolution  was  carried  further  than  to-day — that 
none  are  "  bound  by  any  law  to  which  they  have 
not  in  like  manner  assented  for  the  public  good." 
A  relic  of  the  revolt  from  executive  tyranny  in 
colonial  times  was  preserved  in  the  clause  that  all 
power  of  suspending  laws  or  their  execution  by 
any  authority  without  the  consent  of  the  repre- 
sentatives of  the  people,  is  injurious  to  popular 
rights.  Yet  it  is  somewhat  difficult  to  conceive 
how  any  authority   in   a  democracy  founded   on 

50 


The  Struggle  for  Trial  by  Jury 

the  doctrine  of  natural  rights  could  thus  injure 
the  rights  of  the  people,  for  by  this  doctrine  the 
executive,  the  legislative,  and  the  judiciary  are  of 
equal  rank.  The  long  struggle  for  the  right  of 
trial  by  jury  culminated  in  the  insertion  in  each 
of  the  constitutions  of  a  provision  for  the  trial 
according  to  the  law  of  the  land  of  a  person  ac- 
cused of  capital  or  criminal  offence,  giving  him  the 
right  to  demand  the  cause  and  nature  of  his  accu- 
sation, and  to  be  confronted  by  his  accusers  and 
their  witnesses,  empowering  him  to  call  for  evi- 
dence in  his  own  favor,  and  entitlinor  him  to  a 
speedy  trial  by  a  competent  jury  of  the  vicinage. 
No  eighteenth  -  century  constitutions  permitted 
any  other  than  the  unanimous  verdict  of  a  jury  of 
twelve  men — a  requirement  from  which  later  con- 
stitutions have  freely  departed. 

Among  the  complaints  of  the  American  people 
formally  set  forth  by  Jefferson  in  the  Declaration 
of  Independence,  is  that  of  unwarrantable  searches 
and  seizures  made  by  British  officers.  So  palpable 
a  violation  of  feelings  and  rights  was  the  imme- 
diate origin  of  clauses  in  the  bills  of  rights  de- 
claring such  searches  and  seizures  under  general 
warrant  unconstitutional. 

It  would  be  expected  that  a  people  who  based 
their  political  fabric  upon  the  doctrine  of  natural 
rights,  and  who  were  accustomed  freely  to  express 
their  individual  opinions  on  all  subjects,  would  de- 
clare freedom  of  the  press  to  be  one  of  the  bul- 
warks of  liberty  and  a  constitutional  right. 

Among  complaints   of  long  standing  in  Amer- 

51 


Constitutional  History  of  the  American  People 

ica  at  the  time  of  the  Declaration  of  Indepen- 
dence were  the  treatment  of  the  colonial  militia 
by  the  British  government,  and  particularly  the 
discrimination  in  favor  of  royal  troops.  For 
more  than  a  century  the  Americans  had  claimed 
that  by  their  charters  they  were  empowered 
to  protect  themselves  —  an  idea  out  of  which 
evolved  the  political  doctrine  set  forth  in  the 
declarations  of  rights,  that  the  natural  and  safe 
defence  of  a  free  state  is  its  militia,  composed 
of  the  body  of  its  people  trained  to  arms.  The 
doctrine  is  the  application  to  the  state  of  the  in- 
dividual's right  of  self-defence.  The  old  contro- 
versy between  King  and  colonists  over  the  relative 
rank  of  the  civil  and  the  military  power  was  for- 
ever settled  by  the  common  provision  that  the  mili- 
tary should  always  be  under  strict  subordination 
to  the  civil  power.  Lest  the  doctrine  of  natural 
rights  should  be  made  to  prove  too  much  and  be- 
come the  authority  for  anarchy,  the  Virginia  bill 
declared  that  the  people  had  "  a  right  to  uniform 
government ;  and  therefore  that  no  government 
independent  of  the  government  of  Virginia  ought 
to  be  erected  or  established  within  the  limits  "  of 
the  State — a  provision  found  in  no  other  consti- 
tution. This  doctrine,  which  is  essentially  that  of 
the  centralization  of  civil  authority,  stands  in 
strong  contrast  with  the  later  doctrine  of  secession. 
Common  to  all  the  constitutions  was  a  statement 
of  the  necessity  of  "  a  frequent  recurrence  to  fun- 
damental principles  ";  which  may  be  interpreted 
to   mean  practically  a  campaign  of  political  edu- 

52 


Christian  Doctrine  in  the  Constitntions 

cation.  There  is  a  touch  of  Franklin's  philosophy 
in  the  provision  that  these  principles  can  be  pre- 
served only  "  by  a  firm  adherence  to  justice,  mod- 
eration, temperance,  frugality,  and  virtue."  Prob- 
ably that  spirit  which  moved  the  authors  of  the 
association  of  1774  to  advise  their  countrymen 
to  discountenance  and  discourage  extravagance 
and  dissipation  caused  the  several  conventions  to 
include  this  provision  in  their  declarations  of 
rights. 

Religion  was  defined  as  "  the  duty  which  we 
owe  to  our  Creator;  and  the  manner  of  discharg- 
ing it  can  be  directed  only  by  reason  and  convic- 
tion, not  by  force  or  violence  " — a  broad  applica- 
tion of  the  doctrine  of  natural  rights,  whence  it 
was  concluded  that  all  men  were  equally  entitled 
to  the  free  exercise  of  religion  according  to  the 
dictates  of  their  conscience.  All  the  constitu- 
tions were  made  under  the  influence  of  the  Chris- 
tian religion.  In  Massachusetts,  Church  and 
State  were  in  a  degree  united  and  religious  or- 
ganizations of  a  lawful  character  were  entitled  to 
support  from  taxation.*  In  New  Hampshire, 
public  "  Protestant  teachers  of  piety,  religion,  and 
morality "  were  to  be  supported  by  the  several 
towns,  parishes,  bodies  corporate,  or  religious  so- 
cieties within  the  State,  according  to  law ;  but  the 
union  of  Church  and  State  was  feeble.  Maryland 
protected  in  their  religious  liberty  all  persons  who 

*  The  Episcopal  was  made  the  State  Church  in  South  Carolina 
by  its  first  constitution,  1776. 

53 


Cousfiiufioual  History  of  the  American  People 

professed  the  Christian  religion,  and  the  Legisla- 
ture at  its  discretion  could  lay  a  general  and  equal 
tax  for  its  support.  Soon,  however,  the  demand 
for  religious  toleration  transformed  the  common- 
wealths  into  secular  bodies.  Religion  was  con- 
sidered a  deterrent  of  crime — an  idea  that  ac- 
counts for  the  brief  union  of  Church  and  State  in 
some  commonwealths.  In  order  to  secure  the 
equal  rights  of  its  inhabitants  in  the  administration 
of  justice,  the  Maryland  amendment  of  1795  em- 
powered members  of  the  Society  of  Friends  and 
others  who  were  "  conscientiously  scrupulous  of 
taking  an  oath,"  but  were  otherwise  "qualified  to 
vote  or  to  be  voted  for,"  to  substitute  af^rmation 
for  the  oath  ;  and  three  years  later  the  constitu- 
tion was  again  amended  so  that  the  affirmation 
of  persons  was  considered  "  of  the  same  avail  as 
an  oath  to  all  intents  and  purposes,"  thus  permit- 
tinor  them  to  be  witnesses  in  court. 

Vermont  alone  of  the  commonwealths  applied 
the  doctrine  of  natural  rights  to  all  men  irrespec- 
tive of  race  or  color,  providing  that  no  male  per- 
son born  in  America,  or  brought  from  over  sea, 
could  lawfully  be  held  to  serve  any  person  "  as  a 
servant,  slave,  or  apprentice"  after  he  arrived  at 
the  age  of  twenty-one  years ;  nor  a  female,  in  like 
manner,  after  she  arrived  at  the  age  of  eighteen; 
unless  such  persons  were  bound  by  their  own  con- 
sent after  arriving  at  age  or  were  bound  by  law 
for  the  payment  of  some  obligation.*     This  clause 

*  Vermont,  1777,  1786,  1793. 
54 


Virginia  and  the  State  Constitutions 

may  well  be  called  epoch-making,  for  it  was  the 
first  antislavery  provision  in  an  American  consti- 
tution, the  precedent  for  a  similar  clause  in  the 
constitutions  of  Ohio*  and  Illinois,!  and,  in  mod- 
ified form,  in  two  constitutions  of  New  York.^ 

In  their  bills  of  rights  the  commonwealths  from 
the  first  illustrated  the  two  sets  of  ideas  which 
have  divided  the  country.  The  Virginia  bill  was 
not  common  to  the  Northern  States,  the  Massa- 
chusetts bill  was  not  common  to  the  Southern,  and 
the  difference  was  intensified  as  new  constitutions 
were  adopted.  The  New  England  provisions  be- 
came the  precedent  for  later  constitutions  of  Nor- 
thern States  and  followed  the  movement  of  popu- 
lation westward  to  the  Pacific.  The  Virginia  bill 
became  the  precedent  for  States  to  the  south  and 
west,  and,  with  modifications  and  additions,  is  now 
in  force  there.  Only  three  States  claimed  to  be 
sovereign,  and  these  were  in  New  England, §  but 
the  doctrine  of  residuary  State  sovereignty  pre- 
vailed. This  unphilosophical  notion  was  ad- 
vanced in  the  federal  convention,  was  made  a  po- 
litical doctrine  in  The  Federalist,  and  was  adopted 
for  a  time  by  the  Supreme  Court  of  the  United 
States.     The  idea  was  not  disposed  of  till  i868.|| 

A  working  principle  of  representative  govern- 
ment was  embodied  in  the  claim  of  the  State  to  a 

*  1802.  1 1819.  X 1821, 1846. 

§  Connecticut,  1776,  Act  of  Assembly;  Massachusetts,  1780; 
New  Hampshire,  1784.  The  Connecticut  provisions  do  not  occur 
in  the  constitution  of  1818.  The  Massachusetts  remains;  it  was 
evidently  taken  from  Art.  ii.,  Articles  of  Confederation. 

II  In  Texas  vs.  White. 

55 


Coustitiitioiial  History  of  the  American  People 

portion  of  the  labor,  and,  if  need  be,  of  the  services 
of  the  individual — the  first  general  formulation  of 
the  popular  idea  of  a  tax.  The  right  of  the  citizen 
to  the  due  course  of  law — a  phrase  traceable  to 
the  Great  Charter — was  commonly  set  forth  with 
the  addition  of  his  right  to  a  verification  of  the 
facts  in  the  vicinage  in  which  the  act  was  com- 
mitted. Four  States  made  it  unconstitutional  to 
try  a  man  twice  for  the  same  offence.*  Three 
construed  the  right  of  petition  as  empowering 
the  people  to  instruct  their  representatives.!  As 
incident  to  the  right  of  the  people  to  an  untram- 
melled expression  of  opinion  through  their  repre- 
sentatives, these  were  given  privileges  and  im- 
munities not  enjoyed  by  other  citizens.  When 
we  reflect  on  the  superfluous  legislation  of  our  own 
times,  a  provision  for  frequent  sessions  of  the 
Legislature  strikes  us,  at  first,  as  evidence  of  inex- 
perience in  government.  It  is  evidence  of  the 
persistence  of  colonial  habits. 

During  the  colonial  period  the  annual  session 
of  the  Assembly  was  the  only  check  which  the 
people  had  on  the  executive.  The  idea  was  per- 
petuated in  the  Constitution  of  the  United  States. 
One  commonwealth  now  retains  its  annual  Legis- 
lature, and  it  is  the  only  one  that  has  continued 
its  eighteenth-century  constitution.:]:      It  is  doubt- 


*  New  Hampshire,  1784;  Pennsylvania,  1790;  Delaware,  1792; 
Tennessee,  1796. 

t  Vermont,  1777,  1786,  1793.  North  Carolina,  1776.  Pennsyl- 
vania, 1776,  1790. 

X  Many  features  of  the  first  constitutions  of  New  Hampshire, 

56 


Guarding  the  Independence  of  the  Judiciary 

ful  whether  a  convention  called  at  the  present  time 
to  make  a  national  Constitution  would  provide 
for  annual  sessions  of  Congress. 

The  principle  which  in  large  measure  has  regu- 
lated the  business  transactions  of  the  people  was 
embodied  in  the  provision  forbidding  the  enact- 
ment of  ex  post  facio  laws,  or  laws  impairing  the 
obligation  of  contracts.  Four  States  thus  estab- 
lished a  precedent  for  the  national  Constitution.* 
The  States  guarded  carefully  against  the  confusion 
of  functions,  and  protected  the  citizen  against  the 
usurpation  of  the  judicial  by  the  executive  or  the 
legislative.  Two  complaints,  long  heard  during 
colonial  times,  were  ended  by  the  provision  against 
forcibly  quartering  troops  on  citizens  in  time  of 
peace,  and  by  that  recognizing  the  civil  author- 
ity as  paramount  in  the  state.  No  bill  of  rights 
was  arranged  in  strictly  philosophical  order  nor 
was  free  from  irrelevant  matter,  as  illustrated 
in  the  bills  of  rights  of  three  States,  which  de- 
clare that  an  independent  judiciary  is  essential  to 
the  stability  of  the  commonwealth.!  The  silence 
of  the  others  on  this  point  merely  signifies  that 
they  sought  to   secure   an  independent  judiciary 

Vermont,  Delaware,  North  Carolina,  Kentucky,  Tennessee,  Penn- 
sylvania, and  New  York,  remain  in  the  present  constitutions  of 
these  States.  Massachusetts  has  amended  hers  thirty- three 
times.  New  York,  New  Jersey,  and  Delaware  still  have  annual 
sessions. 

*  Maryland,  North  Carolina,  1776;  Massachusetts,  1780;  New 
Hampshire,  1784. 

t  Maryland,  1776;  Massachusetts,  1780:  New  Hampshire  1784, 
1792. 

57 


Constitutional  History  of  tlv  Afnerican  People 

through  legislation.  The  comparatively  slight 
intimation  of  the  importance  of  an  independent 
judiciary  contained  in  the  first  State  constitutions 
hardly  prepares  us  for  the  elaborate  application  of 
the  idea  in  the  Constitution  of  the  United  States 
and  its  defence  in  The  Federalist. 

The  defects  of  colonial  government  were  inti- 
mated in  the  provision  forbidding  judges  to  hold 
other  offices  during  their  terms  of  service,  or  to 
receive  fees  in  addition  to  their  salaries ;  and  for 
the  first  time  judges  were  subject  to  removal  by 
the  Governor  on  recommendation  of  two-thirds  of 
each  House.*  An  administrative  measure  of  this 
kind  would  scarcely  be  sought  among  the  clauses 
of  a  bill  of  rights.  It  illustrates  what  is  not  rare 
in  constitutions,  how  a  provision  transferred  to 
the  bill  of  rights  from  its  normal  place  in  the 
article  on  the  legislative,  executive,  or  judiciary, 
in  order  to  emphasize  its  importance  and  to  se- 
cure it  from  amendment,  is  placed  in  the  most 
permanent  part  of  the  instrument. 

The  influence  of  Blackstone  may  be  detected  in 
the  language  of  two  constitutions,  which,  in  apply- 
ing the  theory  of  compact,  declared  that  men  sur- 
render some  of  their  natural  rights  when  they 
enter  society.!  The  clauses  on  freedom  of  wor- 
ship recognized  the  rights  of  conscience,  and  pub- 
lic opinion  was  sufficiently  sensitive  to  the  rights 
of  those  who  had  scruples  against  bearing  arms — 

*  Maryland,  1776. 

•f  New  Hampshire,  1784,  1792. 

58 


Indefinite  Characteristics  of  Late  Constitutions 

and  these  were  chiefly  of  the  Society  of  Friends — 
to  allow  them  to  substitute  a  money  equivalent. 

A  provision  destined  to  be  claimed  later  in 
support  of  State  sovereignty  was  adopted  by  two 
Northern  and  two  Southern  States,  reserving  to 
them  the  exclusive  resfulation  of  their  internal 
police.*  The  constitutions  adopted  since  1870 
have  been  criticised  as  partaking  too  much  of  the 
character  of  a  code.  Some  of  the  first  are  open 
to  the  same  criticism.!  It  is  a  wise  convention 
that  knows  the  difference  between  a  constitution 
and  a  code.  The  last  quarter  of  the  eighteenth 
century  was  an  era  of  transition  and  reforms,  some 
of  which  are  pushed  forward  in  these  early  or- 
ganic laws.  The  common-law  maxim,  "The  great- 
er the  truth  the  greater  the  libel,"  was  changed, 
and  the  jury  with  the  evidence  before  it  should 
determine  both  the  facts  and  the  law.  Another 
reform  changed  the  principle  long  made  familiar 
by  the  saying,  "  Once  an  Englishman,  always  an 
Englishman."  Henceforth  the  right  of  emigration, 
and,  as  a  consequence,  in  later  times  the  right  of 
expatriation,  should  be  accounted  natural  and  in- 
herent. \ 

*  Pennsylvania,  Maryland,  and  North  Carolina,  1776;  Ver- 
mont, 1777,  1786,  1793. 

t  Maryland,  1776;  Vermont,  1777,  1786.  Probably  due  to  the 
fact  that  these  constitutions  were  made  by  the  Legislatures  acting 
as  conventions. 

};  States  having  boundary  disputes,  Vermont,  1777,  1786,  1793; 
Pennsylvania,  1776,  1790;  Kentucky,  1792,  1799. 


CHAPTER    III 

THE   FIRST   ORGANIZATION    OF   GOVERNMENT 
IN   THE  STATES 

Though  freedom  in  religion  was  a  characteristic 
reform  of  the  times,  the  freedom  was  relative : 
i^reat  if  one  looked  backward,  slight  if  he  looked 
forward.  There  was  still  a  predominant  disposi- 
tion to  disqualify  the  non- religious  part  of  the 
community  from  voting  and  from  office.  By  the 
non-religious  was  meant  all  who  did  not  formally 
and  publicly  accept  a  prescribed  creed  or  a  theo- 
logical system.  This  disqualification  was  the  first 
to  disappear  in  the  struggle  for  the  extension  of 
the  franchise  which  began  about  1795  with  the 
Democratic  party.  But  the  religious  disqualifica- 
tions were  less  rigorous  than  during  colonial  days. 
Suffrage  extension  was  a  reform  destined  to  agi- 
tate the  public  mind  down  to  our  own  time. 
Another  was  a  step  towards  the  abolition  of  im- 
prisonment for  debt;*  another,  that  the  estates 
of  suicides,  traitors,  and  persons  killed  by  acci- 
dent should  not  be  forfeited  to  the  common- 
wealth, but  descend    to    the    heirs    in    the    usual 


*  Pennsylvania,  1790;  traceable  to  Penn's  Frame  of  Govern- 
ment, April  25,  1682 ;  to  the  Laws  Agreed  Upon  in  England, 
May  5, 1682  ;  to  Charter  of  Privileges,  1701. 

60 


Social  Distinctions  in  tJje  Early  Colonies 

manner:*  a  clear  abolition  of  the  common -law 
provision. 

It  was  to  be  expected  that  the  new  democracy 
would  provide  against  hereditary  emoluments  and 
distinctions  and  titles  of  nobility,  and  that  a  pre- 
cedent would  be  established  making:  it  unconsti- 
tutional  for  a  citizen  to  accept  a  gift  from  a  foreign 
power  without  the  consent  of  the  State.  What  a 
democracy  would  not  accept  it  could  not  well 
grant  itself,  and  the  state  was  made  incapable  of 
bestowing  titles.  It  is  now  quite  forgotten  that 
social  distinctions  were  sharper  then  than  now. 
Jefferson  and  his  party  made  political  capital  out 
of  the  aristocratic  ways  of  the  Federalists,  and  the 
wave  that  later  swept  Jackson  into  the  Presidency 
engulfed  for  two  generations  at  least  the  preten- 
sions of  the  class  described  by  John  Adams  as 
"  the  well  born."  Missouri  and  Arkansas  were 
commonwealths  before  the  levelling  spirits  were 
quieted.  The  crest  of  the  anti-nobility  wave  was 
always  along  the  frontier,  Jefferson  affected  neg- 
ligence, and  made  political  capital  out  of  dishev- 
elled dress.  Political  campaigns  are  still  con- 
ducted on  home-spun  tactics.  The  one  great  tri- 
umph of  the  Whig  party  was  won  when  it  aban- 
doned federal  traditions,  identified  itself  with  the 
people,  and  had  monster  meetings  and  ox-roasts. 

Though  the  States  guarded  the  obligations  of 
contracts  entered  into  by  citizens,  only  twof  de- 

*  Pennsylvania,  1790;  Delaware,  1792;  Kentucky,  1792,  1799. 
t  Delaware,  1792  ;  Tennessee.  1796,  limited  the  right  to  its  own 
citizens. 

61 


Constitutional  History  of  t/je  American  People 

clared  themselves  suable  at  law,  and  one  of  these 
limited  to  its  own  citizens  the  right  to  bring  the 
suit.  The  first,  Delaware,  adopted  the  provision 
two  years  before  the  great  case*  was  decided  that 
led  to  the  eleventh  amendment;  the  second,  Ten- 
nessee, two  years  after.  Though  all  the  constitu- 
tions provided  executive  terms,  only  one  pre- 
scribed a  geographical  rotation  in  the  executive 
office.  The  Governors  of  Maryland  for  three  quar- 
ters of  a  century  came  alternately  from  the  eastern 
and  the  western  shore.  This  commonwealth  was 
the  first  to  proscribe  monopolies,  in  language  now 
familiar  to  the  States  of  the  new  Northwest.  The 
proscription  of  1776  began  the  industrial  cam- 
paign that  is  still  going  on. 

Colonial  experience  and  the  political  philosophy 
of  the  day  combined  to  declare  the  provisions  in 
the  bills  of  rights  inviolable,  or,  as  the  phrase  went, 
"  beyond  constitutional  sanction."  Each  conven- 
tion sought  to  perpetuate  its  work.  Yet  the  six- 
teen States  that  comprised  the  Union  in  1800  had 
adopted  twenty -six  constitutions  in  twenty -four 
years.  This  activity  was  engendered  by  the  in- 
completeness of  those  made  amid  the  stress  of 
war.  It  is  somewhat  paradoxical  that  constitu- 
tions, like  governments,  change  most  in  times  of 
peace.  From  these  first  declarations  the  com- 
monwealths have  departed  but  little.  This  was 
inevitable.  The  doctrine  of  natural  rights,  of  the 
social  compact,  and  of  popular  sovereignty  could 

*  Chesholm  vs.  Georgia,  2  Dallas,  419. 
62 


Natural  Rights  of  the  Early  Settlers 

not  be  abandoned.  The  chief  source  of  the  declara- 
tions was  the  experience  of  Englishmen  in  Eng- 
land and  America.  There  is  no  close  relation  be- 
tween the  colonial  charters  and  these  constitutions. 
What  Americans  read  into  them  and  out  of  them 
was  now  for  the  first  time  formulated  in  the  foun- 
dation of  the  State.  One  phrase  found  in  several 
of  the  later  charters  was  elaborated  into  a  new  prin- 
ciple. Colonists  who,  by  royal  charter,  were  said 
to  have  all  the  liberties  and  immunities  of  free  and 
natural  subjects  of  Great  Britain,  could,  without 
great  intellectual  effort,  at  least  in  the  eighteenth 
century,  when  accusing  the  King  of  violating  the 
social  compact  and  leaving  them  "  in  a  state  of 
nature,"  claim  that  their  rights  were  natural.  This 
may  be  said  to  be  the  fundamental  doctrine  of  de- 
mocracy in  America.*  All  the  provisions  in  the 
American  bills  of  rights,  then  and  now,  were  once 
administrative  measures.  They  are  past  politics 
gone  to  seed,  the  mature  experience  of  men  in 
social  relations.  If  government  were  not  a  mat- 
ter of  administration,  there  would  be  no  bills  of 
rights.  These  need  not  necessarily  be  written. 
They  may  be  secured  in  the  customs  or  tradi- 
tions of  a  people.  From  their  nature  they  tend 
to  lengthen.  Perhaps  the  best  illustration  of  the 
manner  of  their  coming  is  afforded  by  the  amend- 
ments to  the  national  Constitution,  which  are  the 

*  It  was  stated  for  the  first  time  in  a  constitution  by  New  Jer- 
sey— Constitution  1776,  Clause  i.  As  there  given,  it  states  the 
whole  case  of  the  American  Revolution — the  transition  from  mon- 
archy to  democracy. 

67, 


Constitutional  History  of  the  American  People 

national  bill  of  rights.  The  first  ten  were  common 
to  the  first  State  constitutions;  the  remaining  five 
were  added  to  make  secure  administrative  measures 
accepted  as  final  at  the  time  of  their  adoption. 

In  later  years  the  Declaration  of  Independence 
and  the  bills  of  rights  were  often  called  "  glitter- 
ing generalities."*  As  a  people,  we  have  become 
more  or  less  familiar  with  the  privileges  and  im- 
munities which  they  were  intended  to  protect,  and 
therefore  the  provisions  themselves  seem  super- 
fluous. We  cannot  conceive  of  a  republican  form 
of  government  without  them.  The  States  were 
making  the  first  attempt  in  history  to  define  civil 
functions  by  means  of  a  written  constitution.  The- 
oretically, the  division  was  complete ;  practically, 
incomplete,  and  the  incompleteness  was  admitted. 
The  cause  of  the  difificulty  is  the  impossibility  of 
fixing  the  administrativ^e  relations  of  the  three,  so 
called,  powers — the  executive,  legislative,  and  judi- 
ciary. Baffled  by  the  problem  for  three  centuries, 
democracy  in  recent  years  has  attempted  to  solve 
it  by  organizing  the  administrative  as  a  fourth 
power.  This  attempt  at  solution  explains  why 
the  later  constitutions  resemble  a  code. 

The  normal  oroanization  of  the  Les^islature  was 
in  two  branches,  which  prevailed,  except  in  three 
States  for  a  short  time.t  The  division  was  not 
an  inheritance  from   England,  except  as  to  form. 

*  Rufus  Choate  gave  the  phrase  currency.  See  an  article  on 
the  Declaration,  by  Moses  Coit  Tyler,  in  the  North  American 
Review  for  July,  1896. 

t  Pennsj'lvania.  Vermont,  Georgia. 

64 


English  and  American  Legislative  Systems 

Functionally  the  two  Houses  in  America  differ 
widely  from  the  English,  as  was  thoroughly  un- 
derstood in  the  eighteenth  century.  The  life-ten- 
ure, the  membership  by  inheritance,  the  landed 
interests  of  the  House  of  Lords  have  no  place 
in  the  American  Senate.  The  functions  which 
the  English  system  secures  we  secure  by  a  con- 
ventional arrangement  of  elections,  terms,  tenure 
of  office,  and  prescribed  powers.  In  similar  man- 
ner we  established  a  Lower  House  \\\\h  functions 
analogous  to  those  of  the  Commons.  Not  much 
importance  is  to  be  attached  to  variation  in  legis- 
lative titles.*  The  terms  Senate  and  House  were 
sufficiently  common  to  give  title  to  the  branches 
of  the  national  Legislature,  and  since  1787  titles 
have  been  uniform.  The  Houses  together  were 
uniformly  styled  the  General  Assembly.  Annual 
elections  of  the  House  prevailed  and  continued 
till  their  expense  and  the  superfluous  legislation 
they  engendered  compelled  their  abandonment. 
The  change  extends  over  the  nineteenth  century. 
Only  one  State — Massachusetts — continues  the  old 
practice.  Representation  in  the  House  was  vari- 
ously apportioned.  The  basis  was  property,  civil 
corporations,  taxable  inhabitants,  electors,  popu- 
lation, or  some  combination  of  these  elements. 
In  all  States  the  basis  was  the  white  race.  The 
"federal  number,"  as  the  provision  for  representa- 

*  House  of  Representatives  in  Pennsylvania,  Delaware  (1792), 
Georgia,  Kentucky,  Tennessee,  New  England  ;  Assembly  in  New 
Jersey,  New  York,  Delaware  (1776);  House  of  Commons,  North 
Carolina  (1776). 

I.— E  65 


Cousiitiitioual  History  of  the  American  People 

tion  of  three  -  fifths  of  the  slaves  was  called,  was 
adopted  in  only  one  State,*  though  proposed  in 
several  in  later  years. 

In  States  having  cities  containing  a  large  pro- 
portion of  the  population,  a  struggle  early  began 
between  rural  and  urban  interests!  which  has  con- 
tinued to  the  present  and  has  affected  their  suc- 
cessive constitutions.  In  every  instance  the  rural 
interest  has  triumphed  and  the  city  has  been  de- 
nied the  proportion  of  representation  to  which  its 
population  has  entitled  it.  The  custom  early  be- 
gan of  fixing  the  minimum  and  maximum  number 
of  both  House  and  Senate.  Changes  in  popula- 
tion were  usually  provided  for  by  a  sliding  scale 
of  representation  based  on  a  census.  As  in  later 
times,  the  practical  definition  of  a  district  proved  a 
difficult  problem.  Its  solution  could  be  at  best 
only  approximate  and  temporary.  In  some  States 
towns  were  older  than  counties  ;|  in  others  coun- 
ties were  older  than  towns.§  The  representative 
district  as  we  know  it  was  not  yet  worked  out. 
The  unit  of  measure  was  various — the  town,  or 
the  parish,  or  the  county.  Gradually  the  pre- 
dominating basis  of  local  government  became  the 
basis  of  representation — the  town  or  township  in 
the  North,  the  county  in  the  South.  Usually  the 
apportionment  was  loosely  fixed  in  the  first  con- 
stitution of  a  State.  Later  apportionments  were 
left  to  the  Legislature.     There  was  sure  to  remain 

*  Georgia,  1798. 

t  Massachusetts,  New  York,  Pennsylvania,  Maryland,  Virginia. 
X  Massachusetts,  Virginia.  §  The  newer  States. 

66 


Conservatism  of  Early  Democracy 

a  fractional  population  in  the  districts  which,  in 
the  aggregate,  constituted  more  than  the  ratio  of 
representation.  It  was  early  attempted  to  recog- 
nize this  remainder.*  Neither  then  nor  since  has 
the  attempt  given  satisfaction,  though  successive 
conventions  have  wrestled  with  the  problem.  The 
demand  for  equitable  representation  has  been  one 
of  the  chief  causes  of  new  constitutions.  As  no 
official  census  enabled  the  first  conventions  to  ap- 
portion representation  equitably,  their  work  was 
speedily  revised.  This  accounts  for  the  number 
of  constitutions  before  1800.  Population  during 
the  eighteenth  century  was  relatively  stationary. 
A  native  migration  soon  began,  the  effect  of  which 
quickly  transformed  great  portions  of  the  North- 
west and  of  the  Southwest  into  States.  Their  ad- 
mission was  contemporaneous  with  the  arrival  of 
the  advance  guard  of  European  immigrants,  who, 
to  the  number  of  nearly  seventeen  millions,  have 
contributed  to  make  the  problem  of  apportion- 
ment one  of  the  most  difficult  which  the  common- 
wealths have  had  to  solve. 

Though  the  fundamental  notion  of  eighteenth- 
century  democracy  was  equal  rights,  the  constitu- 
tions carefully  discriminated  who  among  the  pop- 
ulation were  qualified  to  vote  and  to  hold  office. 
The  voters  were  a  small  fraction  of  the  people ; 
and  those  qualified  for  office  a  small  fraction  of 
the  voters.  The  Representative  was  required  to  be 
of  a  certain  age,  to  have  resided  in  the  State  or 

*  Kentucky,  1799. 
67 


Constitutional  History  of  the  American  People 

district  a  certain  time,  to  possess  a  certain  amount 
of  property,  principally  in  land ;  to  profess  a  cer- 
tain religious  creed,  and  to  be  native-born,  or  a 
citizen  at  the  time  when  the  constitution  was 
adopted.  Only  white  men  were  eligible  to  office. 
As  the  qualifications  were  carefully  detailed  in  the 
constitution,  they  must  be  interpreted  as  express- 
ing public  opinion.  In  few  instances  were  they 
left  to  the  discretion  of  the  Legislature.  They 
show  what  were  considered  the  guarantees  of  pub- 
lic safety.  Men  possessing  them  were  accounted 
as  having  "  a  permanent,  common  interest  with 
the  community."  The  following  Table  specifies 
the  qualifications  required  from  candidates  in  some 
of  the  States,  according  to  their  constitutions : 

The  Qualifications  of  Representatives  Prescribed  by  the 
State  Constitutions,  1776-1800. 


State 

Const. 

Age 

Residence 

Propbrtv 

Religion 

Term, Limitations 

N.H. 

1776* 
1784 

1792 

(21) 
(21) 

(21) 

For  two  yrs. 
inhabitant 
of    town, 
parish,     0  r 
place   chos- 
en   to    rep- 
resent. 

Estate   of 
£100,   one- 
half  to  be 
freehold    in 
that  town. 

Protestant. 

Annual  election. 

*  In  New  Hampshire  a  Representative  was  a  fieeholder.  .See  Acts  and  Laws,  New 
Hampshire,  Portsmouth,  1771,  p.  3.  In  Rhode  Island  he  was  an  elector  (see  Table  of 
Qualifications).  The  oath  of  an  Assemblyman  in  Connecticut  was  :  "  You,  A.  B.,  do  swear 
by  the  name  of  the  ever-living  God  that  you  will  be  true  and  faithful  to  the  State  of  Con- 
necticut, as  a  free  and  independent  State,  and  in  all  things  do  your  duty  as  a  good  and 
faithful  subject  of  the  said  State,  in  supporting  the  rights  and  privileges  of  the  same." 
(Assembly,  second  Thursday  of  October,  1777.)  The  Representative  was  qualified  as  an 
elector.     For  the  oath  required  in  1776,  see  Acts  of  1776,  p.  451. 

New  York  was  districted,  March  4,  1796,  into  four  "  great  districts  "—Southern, 
Middle,  Eastern,  and  Western,  following  the  grand  division  of  that  for  Presidential  Elec- 
tors, April  12,  1792  (repealed  November  19,  1792).     See  Constitution,  1777. 

In  New  Jersey,  Assemblymen,  members  of  Legislative  Council,  sheriffs,  and  coroners 

68 


IVhat  the  Candidates  Should  Possess 


The  Qualifications  of  Representatives  Prescribed  by  the 
State  Constitutions,  1776-1800. — Continued. 


State.  Const. 

Age 

Vt. 

1777 

1786 
1793 

21 

Mass. 

1780 

(21) 

N.Y. 
N.J. 

1777 
1776 

(21) 
(21) 

Pa. 

1776 

(21) 

Residence 


I  yr.  in  State, 


2  years  in 
State,  I  yr. 
of  which 
(the  last)  in 
the  town  he 
represents. 

I  yr.  in  town 
he  repre- 
sents. 


I  yr.  inhabi- 
tantof  coun- 
ty he  repre- 
sents. 


2  yrs.  in  city 
or  county 
he  repre- 
sents. 


Property 


Freehold    of 

;^IOO 

town  he 
represents, 
or  ratable 
estate  of 
;i{^20ointhat 
town. 


;[f500  real 
and  person- 
al estate  in 
thatcounty. 


Taxpayer. 


Religion 


Belief  in  one 
God ;  in 
spiration  of 
the  Scrip 
tures  ;  pro- 
f e  ss  the 
Protestant 
religion. 


Christian  re- 
ligion. 


No  Protes- 
tant denied 
the  right  of 
candidacy 
on  account 
of  religious 
opinions. 

Religionasin 
Vermont. 


Term, Limitations 


Annual  election. 


Annual  election. 
Not  oftener 
than  4  years 
in  7. 


were  nominated  by  nomination  tickets,  made  by  the  electors,  sent  to  the  town  clerks. 
From  this  list,  published  by  the  clerks,  the  electors  chose  on  the  second  Tuesday  of  Octo- 
ber.    Act  of  February  22,  1797. 

Pennsylvania  was  districted  (apportionment  of  Representatives)  September  4,  1779. 

In  Virginia,  by  one  of  tlie  ordinances,  passed  July,  1775^  the  Senator  was  included  among 
the  officers  of  the  State  to  be  qualified  as  a  freeholder. 

In  South  Carolina,  by  act  of  Assembly,  April  7,  1759,  a  member  was  required  to  be  a 
Protestant,  to  have  resided  one  year  in  the  province,  to  possess  five  hundred  acres  of 
land  and  twenty  slaves,  or  ;{^iooo  clear  in  realty- 

In  States  whose  constitutions  did  not  specify  the  age  of  the  Representative,  custom  or 
law  fixed  it  at  twenty-one  years.  In  the  table  these  are  distinguished  by  placing  the  num- 
ber in  parentheses,  thus  (21). 

69 


Consiitiitional  History  of  the  American  People 


The  Qualifications  of  Representatives  Prescribed  by  the 
State  Constitutions,  i 776-1 800. — Continued. 


State 

Const. 

Acs 

Pa. 

1790 

21  < 

Del. 

1776 

(21) 

" 

1792 

24 

Md. 

1776 

above 
21 

Va. 

1776 

(21) 

N.C. 

1776 

(21) 

S.  C. 

1776 

(21) 

" 

1778 

(21) 

1790 

21 

Rbsioencb 


Property 


Religion 


Tbrm,Li.mitations 


Citizen  and 
inhabitant 
of  the  .State 
3  yrs. ;  the 
last  year  of 
it  in  city  or 
county  he 
represents. 


Residence  in 
county  rep- 
resented. 


Citizen  and 
inhabitant 
of  the  State 
3  yrs.;  the 
last  year  in 
county. 

I  year  ir 
county  rep 
resented. 

Reside     in 

county. 
I     year      ir 

county. 


3  yrs.  in  State 


Taxpayer. 


Freehold. 


Freehold    in 
county. 


;{;500  real 
and  person- 
al property, 
above. 

Freeholders 
in  same. 

100  acres  for 
life  or  in  fee 
(possessor 
thereof  for  6 
mos.  before 
election)  in 
the  county 
represented 


;^3500  (cur 
rency)  in 
real  estate. 

500  acres, 
freehold 
and  10  ne- 
groes, or  of 
2^1 50  clear. 

70 


The  qualifi 
cation  is  in 
the  nega 
tive:  no  per 
son  who  ac- 
knowledges 
the  being  of 
a  God  and  a 
future  state 
of  rewards 
and  punish 
inents  to  be 
disqualified 

Belief  in  the 
Trinity  and 
in  the  inspi 
ration  of  the 
Scriptures. 


Christian  re 
ligion. 


Protestant. 


Protestant. 


Annual  election. 


Chosen   bien- 
nially. 


Free  white  man. 


Legislative  Procedure  Borrowed  from  England 

The  Qualifications  of  Representatives  Prescribed  by  the 
State  Constitutions,  1776-1800. — Concluded. 


State 

Const. 

1777 

17S9 

1798 

1792 
1799 

1796 

Age 

Residence 

Property 

Religion 

Tbrm.Limitations 

Ga. 

21 
21 

21 

24 
24 

21 

12    mos.    in 
State,     3 
months  in 
county. 

7  yrs.  citizen 
of  U.  S. ;  2 
yrs.  inhabi- 
tant of  the 
State,    and 
an     inhabi- 
tant of  the 
county  rep- 
resented. 

The  same 
as  in  1789. 

2  yrs.  citizen 
of  the  State; 
last  6  mos. 
of  county. 

Citizen  of  U. 

250  acres  of 
land      or 
;^250. 

200    acres 
land      or 

$150. 

250  acres,  or 
taxable 
property 
worth  ;^500 
in  the  coun- 
ty. 

Protestant. 

Annual  election. 

Chosen   on   the 

Ky. 

federal  basis — 
"  three-fifths  " 
clause. 

Chosen  ann'lly. 

Tenn. 

S. ,  2  yrs.  in 
State  ;    last 
year  in  the 
town     or 
county  rep- 
resented. 
3yrs.inState; 
I    year     in 
county. 

200    acres, 

Biennial. 

freehold. 

Centuries  of  practice  in  legislation  had  worked 
out  a  procedure  in  the  British  Parliament,  and  the 
substance  of  it  was  embodied  in  these  constitu- 
tions. The  provisions  regulated  the  quorum,  the 
election  of  members,  their  official  conduct,  their 
privileges,  and  the  power  of  the  House  or  Senate 
over  them.  This  portion  of  our  supreme  law  well 
illustrates  the  origin  of  constitutional  provisions. 

71 


Const  it  lit  ional  History  of  tijc  American  People 

From  the  State  constitutions  the  federal  conven- 
tion made  up  the  analogous  part  of  the  national 
Constitution,  They  were  construed  as  checks  and 
balances  in  legislation. 

If  the  test  of  sovereignty,  at  this  time,  be  the 
oath  of  allegiance,  the  States  were  sovereign,  as 
Representatives  and  other  State  officials  did  not 
swear  allegiance  to  the  United  States,  but  to  their 
own  commonwealth.  The  requirement  intimates 
how  slight  men  considered  their  obligation  to  the 
national  government.  The  national  idea  which 
now  prevails  was  then  unheard  of.  Speeches 
without  number  have  been  made,  and  books  with- 
out number  written,  to  prove  that  the  national  gov- 
ernment, paramount  and  sovereign,  began  on  the 
4th  of  March,  1789.  Since  the  civil  war,  almost 
unconsciously,  national  sovereignty,  as  now  under- 
stood, has  been  freely  imputed  to  the  United 
States  in  the  eighteenth  century.  Two  things 
must  be  remembered.  The  Constitution  was 
ratified  with  the  understanding  that  a  residuary 
sovereignty  was  left  in  the  States  ;  the  present 
idea  of  national  sovereignty  was  evolved  by  more 
than  a  century  of  administration.  In  other 
words,  we  have  learned  by  experience  that  it  is 
impossible  to  administer  a  general  government 
that  is  not  sovereign.  Necessity  made  the  Con- 
stitution originally,  and  necessity  has  worked  out 
the  idea  of  national  sovereignty.  Too  often  ideas 
are  imputed  to  "  the  fathers "  which  it  was  im- 
possible for  them  to  hold.  If  the  federal  gov- 
ernment had  been  commonly  recognized  in  the 

72 


state  and  National  Sovereignty 

eighteenth  century  as  sovereign,  the  oath  of  al- 
legiance would  not  have  been  limited  to  the  State. 
With  one  exception,  the  State  constitutions  now 
in  force  accord  with  public  opinion  on  national 
sovereignty.  The  excepting  constitution — that 
of  Massachusetts  of  1780 — is  in  this  particular  a 
solitary  survival  of  the  eighteenth  century,  and  it 
practically  conforms  by  statute  with  the  other 
forty -four.  The  growth  of  the  idea  of  national 
sovereignty  kept  pace  with  the  degree  to  which 
the  general  government  identified  itself  with  the 
interests  of  the  people.  At  first  the  States  did 
the  more  for  them.  As  soon  as  the  States  began 
to  fall  behind,  the  idea  of  national  sovereignty  de- 
veloped. The  State  constitutions  kept  pace  with 
the  idea,  and  gradually  prescribed  allegiance  to 
both  governments. 

Education  at  public  expense,  which  now  consti- 
tutes an  element  so  essential  to  the  general  wel- 
fare, was  quite  unthought  of  in  the  eighteenth  cen- 
tury.* The  need  of  schools  was  felt,  and  was  met 
in  part.  The  silence  on  the  subject,  at  the  time, 
should  not  be  construed  as  evidence  of  wilful 
neglect  of  learning.  The  States  were  poor  and 
deeply  in  debt.    Individualism  ruled  the  hour,  and 

*  Massachusetts  Constitution,  1780.  Pennsylvania,  1790— the 
provision  was  put  in  to  protect  the  then  newly  established  Col- 
lege of  Philadelphia ;  Art.  vii.,  Sec.  3,  was  inserted  to  protect 
the  old  college,  whose  charter  had  been  attacked  by  the  Legis- 
lature. See  Stone's  edition  of  Wood's  History  of  the  University; 
third  edition,  Philadelphia,  1896.  Five  States  made  the  support 
of  schools  obligatory  on  the  Legislature  —  Pennsylvania,  Ver- 
mont, New  Hampshire,  Massachusetts;  Georgia,  1798. 

73 


Coiistitiitioual  Histoiy  of  fbe  American  People 

it  was  not  thought  to  be  a  function  of  the  State  to 
do  for  a  citizen  what  he  ous^ht  to  do  for  himself. 
We  defend  public  education  as  the  fathers  de- 
fended property  and  religious  qualifications — as  a 
deterrent  of  crime.  A  slight  change  in  the  phrase, 
"  Education,  the  cheap  defence  of  the  nation,"  puts 
us  in  touch  with  eighteenth-century  thought. 

John  Adams  was  the  father  of  the  public  school, 
the  State  university,  the  State  college,  and  the 
normal  school.  He  realized  when  he  inserted  the 
educational  clauses  in  the  constitution  of  Massa- 
chusetts that  he  was  departing  from  precedent  and 
feared  lest  all  would  be  struck  out*  Save  in  New 
England,  the  idea  lay  dormant  until  the  national 
government  began  to  make  donations  of  public 
lands  exclusively  for  school  purposes.  The  State 
constitutions  then  introduced  an  administrative 
article  on  education.  This  act  of  the  general  gov- 
ernment strengthened  the  national  idea.  In  our 
day,  the  right  to  education,  in  popular  estimation, 
ranks  as  a  civil  right. 

Temporary  features  are  found  in  all  constitu- 
tions ;  those  in  the  first  refer  chiefly  to  pending 
questions  of  boundary  —  settled  later  by  surveys, 
although  nearly  every  commonwealth  is  still  vexed 
by  some  boundary  dispute.  Traces  of  abuses  in 
legislation  that  still  survive  are  found,  such  as 
filibusterinof  and  the  g^rantino^  of  ofratuities.  Lesfis- 
latures  acted  under  a  free,  general  grant  of  powers. 
The  exceptions  scarcely  suggest  the  later  almost 

*  L/fe  and  Works  of  John  Adams,  Vol.  i.,  p.  24. 
74 


Powers  of  State  Legislatures 

tropical  growth  of  provisions  against  special  legis- 
lation. The  first  limitation  of  this  kind  was  a 
rather  feeble  attempt  to  regulate  divorces.*  In- 
compatible offices  were  defined ;  clergymen  were 
disqualified  from  civil  office,  not  so  much  to  sepa- 
rate Church  and  State  as  to  improve  the  profes- 
sion.! The  compensation  of  members  was  a  per 
diem  allowance,  regulated  in  some  States  by  the 
constitution,  in  others  by  the  Legislature.  A 
member  was  disqualified  by  receiving  fees  or  by 
loss  of  property.  The  House  possessed  the  ex- 
clusive right  to  originate  money  bills.  Tennessee  % 
inaugurated  the  change  which  after  1800  was  grad- 
ually to  overspread  the  country,  that  the  bill  may 
originate  in  either  House. 

Departure  from  English  precedent  was  inevita- 
ble, as  the  Senate,  being  an  elective  body  like  the 
House,  was  responsible  to  the  same  constituency: 
a  condition  that  never  prevailed  in  England.  It 
was  a  case  of  cessat  ratio,  cessat  lex.  The  change 
begun  in  1796  intimated  that  others  might  be  ex- 
pected, bringing  the  Legislature  into  the  condition 
— practically  set  by  the  later  constitutions — of  one 
body  differing  only  by  tradition  from  the  other. 
The  House  was  the  chief  heritage  from  colonial 
times.  It  was  the  assembly  to  which  for  a  cen. 
tury  and  a  half  the  people  had  turned  for  protec- 
tion and  relief.     It  preserved  many  colonial  tradi- 

*  Georgia,  1798. 

t  New   York,    1777;    North   Carolina,  1776;   South   Carolina, 
Georgia,  Kentucky,  1799;  Tennessee,  1796. 
\  Tennessee,  1796. 

75 


Constitutional  Histoiy  of  the  American  People 

tions  and  practices,  of  which  the  distinguishing 
one  was  its  exclusive  powers  of  taxation.  The 
Senate  was  a  product  of  the  times,  springing  into 
existence  when  colonies  became  commonwealths. 
Its  origin  is  suggested  by  the  name  it  bore  in 
several  States — the  Legislative  Council.*  This 
oriiiinal  must  not  be  confused  with  the  Executive 
Council  which  for  a  time  also  existed  in  most  of 
the  States  and  survives  in  three. t  The  Senate 
sprang  from  an  idea,  embodied  in  the  New  Eng- 
land charters,  that,  in  addition  to  the  colonial 
Assembly,  Assistants  to  the  Governor  should  be 
chosen.  As  the  theory  of  checks  and  balances 
took  possession  of  the  public,  the  Senate  as  we 
now  know  it  was  devised  as  a  set-off  to  the 
House.  It  was  the  most  artificial  part  of  the  new 
civil  system,  and  its  functions  have  never  been 
as  distinct,  in  the  popular  mind,  as  those  of  the 
House.  It  is  not  strange  that  the  proposition  to 
dispense  with  it  has  been  made  from  time  to  time. 
As  its  functions  become  identical  with  those  of 
the  House,  its  existence  becomes  precarious.  It 
seems  to  weaken  as  the  administrative  strength- 
ens, but  the  House  has  weakened  also  at  the  same 
time.  It  would  seem,  previous  to  experience,  that 
the  Senate  would  be  strengthened  by  being  em- 

*  Delaware  (1776),  called  Council  of  the  General  Assembly;  New 
Jersey,  South  Carolina  (1776),  Legislative  Council;  New  Hamp- 
shire, The  Council ;  Connecticut,  Rhode  Island,  The  Governor 
and  Assistants.  Until  1790  there  was  no  Upper  House  in  Penn- 
sylvania, nor  in  Vermont  till  1836. 

t  Maine,  New  Hampshire,  Massachusetts.  Efforts  have  been 
made  to  abolish  it,  especially  in  Massachusetts  (i 880-1 895). 

76 


The  Senate  a  New  Device 

powered  to  originate  money  bills.  On  the  con- 
trary, the  idea  has  strengthened  that  the  dualism 
is  superfluous,  and  that  the  junior  body  should  be 
permanently  dissolved.  The  fate  of  the  State 
Senate  is  a  problem  for  the  future. 

The  original,  advisory  functions  of  the  Senate 
are  now  performed  largely  by  commissions,  ad- 
ministrative boards,  and  individuals,  who,  in  the- 
ory, are  experts.  All  this  body  of  administrative 
agents  was  wanting  in  the  first  constitutions,  ex- 
cepting a  few  military,  fiscal,  and  land  officers. 
The  Executive  Council  was  an  illustration  of  the 
popular  distrust  of  Governors.  The  Crown  was 
not  yet  forgotten. 

The  Qualifications  of  Senators  as  Prescribed  by  the  State 
Constitutions,  i  776-1 800. 


State 

Const. 

Age 
30 

Residence 

Property 

Religion 

Term 

Remarks 

N  H 

1776 

1784 

1792 
1777 

1786* 
1793 

Inhabitant. 

7  years  in- 
hab.   State 
and  of  dist. 
at     time 
elected. 

I  yr. 
I  yr. 

This  upper 
b  r  a  n  c  h 

(temporary), 
was  chosen 
by  the  low- 
e  r,  and 
called  the 
Council. 

Vermont 

Vt 

Freehold 
wo  r  t  h 

;^200. 

Protestant 

had  a 
Council, 
but  no 
Senate. 

" 

*  Vermont  had  no  Senate  until  1836. 

77 


Const  it  III  ioiidl  Histoiy  of  the  American  People 


The  Qualifications  of  Senators  as  Prescribed  by  the  State 
Constitutions,  i  776-1 800. — Continued. 


Statb  Const. 

Acs 

Residbncb 

Property 

Religion 

Term 

Remarks 

Mass. 

1780 

5  yrs.  inhab. 
of     State, 
inhab.     of 
dist.  repre- 
sented. 

;^300     in 
freehold, 
or;^6ooin 
personal 
estate. 

I  yr. 

N.  Y 

1777 
1776 

Freeholder. 

4  yrs. 
I  yr. 

N.J. 

I  yr.  county 

;,^i  0  0  0 

Same    as 

The    Upper 

proclama- 

Assem- 

House Mas 

tion  mon- 

blymen. 

called    the 

ey,  if  real 

Legislative 

and  per- 

Council. 

sonal    es- 

tate. 

Pa. 

1776 

No  Upper 
House. 

1790 

25 

Citizen     of 
State     4 
years ;  the 
last  of  the 
dist.  repre- 
sented. 

Taxpayer. 

Same   as 
for  Rep- 
resenta- 
tives. 

4  yrs. 

Del. 

1776 

25 

Reside  in 
county. 

Freeholder. 

3  yrs. 

Called     the 

Council. 

1792 

27 

Citizen     of 
State    3 
years ;  the 
last  of  the 
county. 

200     acres 
freehold, 
or  real  and 
personal 
property 
worth 

;^IOOO. 

3  yrs. 

Md. 

1776 

25 

3  yrs.   resi- 

;^iooo real 

As  mem- 

5 yrs. 

Chosen     by 

dence      in 

and  per- 

bers   of 

electors. 

State. 

sonal. 

House. 

Va. 

1776 

25 

Resident  in 
district. 

Freeholder. 

I  yr. 

N.  C. 

1776 

I  year  in 
county. 

300     acres 
in  fee. 

I  yr. 

S.C. 

1776 

Chosen  by 
the  Assem- 

b  1  y    from 

its     own 

body,    and 

called    the 

Legislative 

Council. 

1778 

1 

30 

5    years   in 
State. 

;,{^20oo  set- 
tled  free- 
hold estate 

Protestant 

I  yr. 

7S 


Senatorial  Qiialifications 


The  Qualifications  of  Senators  as  Prescribed  by  the  State 
Constitutions,  1776-1800. — Concluded. 


State 


Const. 


Age 


Rbsidencb 


Property 


Religion 


Term 


Remarks 


s.c. 


1790 


30 


Ga. 


Ky. 


Tenn. 


1777 
17S9 


1793 


1792 


1799 


1796* 


28 


25 


27 


35 


5    years   in 
State. 


9  years  in- 
habitant 
of  U.S.,  3 
years  of 
State ,  6 
months, 
county. 

Same  as  in 
1789,  ex- 
cept I  year 
in  county. 


2    years    in 
State. 


U.S.  citizen, 
6  years  in 
State,  last 
in  district. 

3  years  in 
State,  of 
which  I  yr. 
in  county. 


;^300  ster- 
ling, set- 
tled free- 
hold. If 
a  non-res- 
ident in 
the  d  i  s- 
trict,  an 
e  state, 
freehold, 
of  ;^  I  coo, 
cl  e  a  r  of 
debt. 


250  acres 
freehold 
or  proper- 
ty worth 
^250. 


Freehold 
wort  h 
$500  or 
taxab  le 
property 
worth 
$1000. 


200  acres 
in  free- 
hold. 


4yrs. 


3  yrs. 


I  yr. 


4  yrs. 


4  yrs. 


2  yrs. 


No     Upper 
House. 


Chosen  by 
electors 
specially 
elected. 


The  compensation  of  members  of  the  two  Houses  was  usually  the  same  ; 
but  the  Speaker  of  the  House  received  more  than  any  other  member  of  it. 


1834- 


In  Tennessee  the  qualifications  for  Senators  and  Representatives  were  the  same  until 

79 


Coiistiliitioiidl  Histoiy  of  the  Anicrican  People 

and  the  President  of  the  Senate  received  the  same  as  the  Speaker  of 
the  House.  Thus,  in  1797,  the  Speaker  and  the  Vice-l'resident  of  the  Coun- 
cil, in  New  Jersey,  received  20  shillings  a  day ;  the  councillors  and  mem- 
bers, 17  shillings;  in  Pennsylvania,  1777,  the  members  received  15  shil- 
lings, the  Speaker,  20  shillings.  In  1791,  in  Pennsylvania,  the  two  pre- 
siding officers,  22  shillings  and  6  pence  ;  the  Senators  and  Representatives, 
15  shillings  and  9  pence,  mileage.  In  \'irginia,  in  1779,  each  Assembly, 
man  was  paid  50  lbs.  of  tobacco  daily,  and  2  lbs.  additional  as  mileage  ;  by 
the  act  of  17S0,  the  grand  jury  was  required,  at  each  of  the  four  sessions 
of  the  general  court,  to  estimate  the  money  value  of  tobacco  as  a  basis 
for  the  wages  of  members  of  Assembly. 

Senatorial  apportionment  differed  from  that  for 
the  House.  It  was  by  groups  or  masses  of  popu- 
lation rather  than  by  single  towns  or  counties.* 
The-basis  was  property  ;  that  of  the  House,  though 
varying,  was  persons,  or  persons  and  property. 
The  district  came  into  existence  in  the  attempt  to 
establish  a  basis  for  Senatorial  apportionment.  To 
secure  all  the  benefits  of  the  Senatorial  device,  the 
retiring  clause  was  worked  out  by  which  democ- 
racy secured  a  changing  body  and  a  permanent 
one  at  the  same  time.  The  State  thus  established 
the  precedent  for  the  nation.  The  Senate  was  a 
smaller  body  than  the  House,  chosen  for  a  longer 
term,  and  the  qualifications  for  its  members  were 
a  little  more  exacting.  The  Senator  was  an  older, 
and  in  some  States  a  richer,  man.t  A  body  as 
conventional  in  origin  would  be  expected  to  illus- 
trate temporary  expedients  or  schemes  of  election. 
Of  these,  most  noticeable  was  the  Electoral  College, 
the  prototype,  if  not  the  precedent,  for  the  Presi- 

*  Virginia,  New  Jersey,  1776;  Massachusetts.  1780;  Georgia, 
1789;  Pennsylvania,  1790;  New  Hampshire,  1793. 

t  New  Jersey,  Maryland,  Delaware,  North  Carolina,  1776;  New 
York,  1777;  Massachusetts,  1780. 

80 


Plutocratic  Characteristics  of  the  Senate 

dential  Electors.  The  States  speedily  abandoned 
the  College — Maryland,  in  which  it  originated,  and 
Kentucky,  which  took  it  from  Maryland  and  the 
Constitution  of  the  United  States.  The  idea 
early  took  root  that  each  county  should  have  one 
Senator.  But  the  theor)'  of  equal  representation 
compelled  a  recognition  of  the  more  populous 
counties  and  increased  the  difficulties  of  appor- 
tionment. Various  devices  were  tried  to  keep  the 
membership  of  the  Senate  in  ratio  with  popula- 
tion, but  none  gave  full  satisfaction.  The  func- 
tions of  the  Senate  were  in  part  copied  from  those 
of  the  House  of  Lords,  as  that  of  a  court  of  im- 
peachment or  a  court  of  law,  but  in  part  conven- 
tional, as  that  of  electing  the  Governor,'^  In  some 
States  the  House  participated  in  this  election.! 
The  first  led  to  confusion  of  legislative  and  judi- 
cial functions ;  the  second  was  soon  recognized 
as  undemocratic.  Gradually,  before  the  century 
closed,  the  Senate  came  to  be  recognized  as  rep- 
resenting the  property,  the  House  the  persons, 
in  the  State.  But  the  idea  was  at  best  conven- 
tional. For  this  reason  democracy  set  about  de- 
stroying the  first  basis  and  strengthening  the 
second,  and  the  functions  of  the  Senate  were  viewed 
in  a  new  light.  It  gradually  became  a  democratic 
body.  The  old  distinction  was  for  half  a  century 
a  political  issue.     But  the  democratic  character  of 

*  Georgia,  1789.      As  a  court,   New  Jersey,  New  York,  Con- 
necticut, Rhode  Island. 

t  In  the  Southern  States  usually  by  joint  ballot.     In  Georgia, 
1777,  the  House  alone  elected  him. 
I.— F  81 


Coiistiiiiiioual  History  of  the  American  People 

the  Senate  was  not  established  until  after  1820. 
Together,  House  and  Senate  comprised  a  working 
Legislature  whose  methods  of  procedure  remain 
essentially  as  when  they  were  first  established. 
The  constitution  held  the  two  branches  together. 
As  a  device,  the  Senate  was  almost  a  discovery 
in  politics.  It  illustrates  how  democracy  utilized 
political  mechanics  in  working  out  a  substitute 
for  an  ancient  branch  of  the  Legislature  which 
hitherto  had  consisted  of  a  landholding  class — law- 
makers by  accident  of  birth.  There  was  nothing 
accidental  in  the  substitute.  Every  quality  and 
function  was  fixed  by  the  logic  of  the  political 
situation.  It  is  in  this  sense  only  that  the  State 
Senate  is  one  of  the  natural  flowers  of  democracy. 


Qualifications 

OF  Governors.     State 

Constitutions, 

1776-1800.* 

State 

Const. 

Age 

Residence 

Property 

Religion 

Term 

Remarks 

N  H 

1776 

1784 

1792 

1777 
1786 

1793 
1780 

1777 

Vt 

30 
30 

7   years    in 
State. 

;^500,  one- 
half     in 
freehold. 

Protes- 
tant. 

I  yr. 

Styled     the 
President. 

.. 

4   years   in 

State. 
7    years    in 

State. 



Mass. 
N.Y. 

;i^iooo  free- 
hold. 
Freeholder 

Christian. 

*  The  Governor  of  Rhode  Island  was  a  freeholder,  and  elected  annually ;  so  of  Connecti- 
cut. In  New  York,  act  of  March  27,  1778,  the  elector  voted  viva  voce  for  Senators  and 
Assemblymen,  but  by  ballot  for  Governor  and  Lieutenant-Governor.  In  New  Jersey  the 
Governor's  salary,  by  act  of  December  23,  1784,  was  £s5°\  November  7,  1797,  £7S°- 
November  7,  1798,  XJ700;  November  11,  1799,  $1866.67.  In  Virginia,  his  salary,  act  of 
May,  1779,  was  ;C45oo.  In  Kentucky,  act  of  January  22,  1798,  ;{l4oo,  also  fuel,  station- 
ery, and  postage.  In  Tennessee,  October  23,  1796,  $750.  In  all  the  States,  no  man  other 
than  a  freeholder  was  chosen  Governor ;  nor  any  man  who  had  not  long  been  a  resident 
of  the  State.  In  States  whose  constitutions  did  not  specify  the  age  qualification,  it  may 
be  put  at  thirty  years.  A  person  not  professing  the  Christian  religion  was  not  likely  to  be 
mentioned  as  candidate  for  Governor  ;  exceptions  will  occur — as  that  of  Jefferson  in  Virginia. 

82 


Gubernatorial  Qualifications 


Qualifications  of  Governors.      State  Constitutions,  i  776-1 800. 


State 


N.  J. 
Pa. 

Del. 


Md. 


Va. 

N.  C. 

S.C. 


Ga. 


Ky. 


Tenn, 


Const. 


1776 

1776 
1790 

1776 


1792 
1776 

1776 
1776 

1776 

1778 

1790 

1777 
1789 


1798 

1792 
1799 

1796 


Age 


30 


30 


Residence 


7    years    111 

State. 


I2yrs.  U.S., 
last  6  years 
State. 

5  years  in 
State. 


5    years    in 
State. 


10  years  in 

State. 
10  years  in 

State. 

3    years    in 

State. 
12  yrs.  citi- 

zenof  U.S. 

6  years  of 

State. 


2  years  cit- 
izen of  the 
State. 

Citizen  of 
U.S.,6yrs. 
resident  of 
State. 

4  years  cit- 
izen of  the 
State. 


Property 


;,f50co,    of 
which 
£  1000    is 
freehold. 


;^  1000  free- 
hold. 


£  10,  000 
freehold. 

;^I500  set- 
1 1  e  d  es- 
tate, clear. 


500    acres 
land,  free- 
hold,    or 
£  1000 
other 
property. 

500  acres, 
freehold, 
or  $4000 
in  other 
property. 


500    acres, 
freehold. 


Religion 


Protes- 
tant. 


Christian. 


P  r  o  t  e  s- 
tant. 


P  r  o  t  e  s- 
tant. 


Term 


I  yr. 


3  yrs. 


3  yrs. 


Remarks 


I  yr. 


2  yrs. 


1  yr. 

2  yrs. 


2  yrs. 


4  yrs. 


4  yrs. 


2  yrs. 


President. 


Inel i  gible 
for  3  years. 
Styled  the 
President. 


In  eligible 
for  4  years. 


Ineligible  3 
years  in  6. 

Temporary 
gov't. 

Ineligible 
till  4  years. 


Eligible  I  yr. 
out  of  3. 


Ineligible 
for  7  yrs. 


83 


Consfitiitioiial  History  of  the  American  People 

Distrust  of  executive  power  and  fear  of  execu- 
tive usurpation  characterize  democracy  at  this 
time.  Executive,  like  legislative,  titles  varied 
among  the  States.  The  oldest  working  charter 
called  the  executive  the  President,*  a  title  destined 
to  highest  dignity  in  the  country.  The  Governor 
had  been  the  most  important  man  in  the  colony, 
and  by  tradition  was  the  most  important  in  the 
State.  Democracy  is  forced  to  fall  back  on  cere- 
mony to  take  the  place  of  the  halo  that  hedges 
kings,  and  the  early  Governors  were  dignitaries 
such  as  Presidents  became  in  later  years.  But 
the  dignity  of  office  is  at  last  measured  by  the  real 
power  that  accompanies  it,  in  spite  of  the  aristo- 
cratic airs  and  fine  dress  of  a  Governor  or  the  title 
by  which  the  constitution  requires  us  to  address 
him.  The  unwritten  law  of  official  life  has  at  last 
given  all  Governors  the  title  prescribed  in  the  con- 
stitution of  Massachusetts.  After  much  discus- 
sion, the  federal  convention  decided  to  give  no 
title  to  the  national  executive  other  than  the  name 
of  the  office ;  whence  it  has  come  that  the  execu- 
tive of  a  commonwealth  is  addressed  as  "  his  Ex- 
cellency " — and  the  executive  of  the  nation  simply 
as  "  the  President."  Where  democracy  was  strong- 
est and  most  experienced — as  in  New  England — a 
Governor  might  be  re-elected  at  the  will  of  the 
people ;  elsewhere  constitutional  limitations  more 
or  less  affected  the  choice.!     Executive  qualifica- 

*  Charters,  1606,  1609. 

t  Pennsylvania,  1790,  "nine  years  in  twelve";  Delaware,  1792, 
"three  years  in  six";  South  Carolina,  1778,  1790,  "two  years  in 


Governors  in  the  Early  Days  of  Commonwealths 

tions  were  more  discriminating  in  degree  than 
those  laid  down  for  Senators — he  must  be  longer  a 
resident  of  the  State  and  be  possessed  of  a  greater 
amount  of  property.  The  ofifice  in  some  States 
was  accessible  only  to  the  few  having  strong 
family  influence.  United  States  citizenship  was 
not  a  common  requisite,  as  now,  for  legislators, 
governors,  judges,  and  minor  officials.  The  Gov- 
ernor was  chosen  by  the  Legislature,  except  in 
New  England  and  New  York,  where  he  was 
chosen  by  the  electors.  Not  until  Jacksonian 
democracy  revised  the  State  governments  was  the 
Governor  chosen  by  popular  vote  throughout  the 
Union.  During  the  intervening  years  the  manner 
of  choice  was  a  transition  from  the  old  method 
by  royal  appointment  to  the  new  one  by  popular 
election.  In  case  of  failure  to  elect  by  popular 
vote,  the  choice  was  made  by  the  Legislature,  as 
at  present. 

The  Governor  was  a  military  rather  than  a  civil 
officer.  His  military  duties  were  quite  carefully 
outlined ;  his  civil  functions  were  obscure.  He 
shone  in  the  splendor  which  now  clothes  his  staff. 
His  civil  functions  now  almost  wholly  obscure  his 
military.  The  difference  was  carried  to  practical 
ends.  The  pardoning  and  the  veto  power  were 
not  freely  given  to  him.  In  popular  fancy  he  was 
the  man  on   horseback.     To-day  he  is   the   man 

six."  Annual  elections  in  New  England,  New  Jersey,  South  Car- 
olina, 1776.  Biennial  in  New  Hampshire,  1784,  1792;  South  Car- 
olina, 1778,  1790;  Georgia,  1789,  1798;  Tennessee,  1796.  Quad- 
rennial in  Kentucky,  1792. 

85 


Coiistitiifioiial  History  of  the  American  People 

with  the  quill.  It  was  a  military  period,  and  the 
soldier  rather  than  the  civilian  was  hero.  It  is  a 
paradox  of  modern  times  that  when  standing 
armies  have  become  an  institution  the  civilian, 
not  the  soldier,  the  Iron  Chancellor,  not  Von 
Moltke,  is  the  hero.  In  America  it  was  the  age 
of  captains,  as  eighty  years  later  was  the  age  of 
colonels.  The  state  was  conceived  as  a  military 
rather  than  an  industrial  machine.  The  concept 
was  antithetic  to  that  of  the  rights  of  man.  As 
yet  there  were  few  offices  and  no  civil  service. 
The  gentle  art  of  creating  offices  was  not  yet  dis- 
covered. Few  were  the  Governor's  appointments, 
and  chiefly  in  the  militia.  He  could  not,  unaided 
by  his  council,  nominate  judges  or  the  few  civil 
officers  which  the  State  required — such  as  the 
attorney-general  or  the  sheriff.  His  compensa- 
tion was  variously  described  as  honorable,  reason- 
able, and  adequate.  Perhaps  the  amount  was 
omitted  from  the  constitutions  and  left  to  be  fixed 
by  the  Legislature  because  of  the  fluctuation  in 
the  paper  money  of  the  times.  A  salary  of  nine 
thousand  pounds  *  seems  princely  till  we  learn 
that  it  was  in  fiat  money. 

His  function  in  leQ:islation  was  also  obscure. 
Popularly,  he  was  supposed  to  execute,  not  to 
make,  laws — or,  as  in  our  day,  to  unmake  them.  He 
was  expected  to  send  an  annual  message  to  the 
Legislature  in  which  he  pointed  out  the  needs  of 
the  State.!     For  a  time  Legislatures  seem  to  have 

*  South  Carolina,  1776. 

t  Pennsylvania,  the  first  State  to  follow  the  national  Constitu- 

86 


IVheri  the  Governor  IVas  Supreme 

taken  these  messages  literally.  In  our  day  they 
are  consigned  to  a  committee  and  forgotten.  The 
messages  of  the  early  Governors  remain  a  fair 
index  of  early  legislation.  As  long  as  this  state 
of  things  continued,  it  was  unnecessary  to  limit 
the  power  of  the  Assembly  and  increase  that  of 
the  Governor.  He  was  conceived  to  be  the  head 
of  the  State.  That  his  office  was  considered  one 
of  great  dignity  is  illustrated  by  the  early  history 
of  the  national  government.  Men  preferred  the 
office  of  Governor  to  that  of  Congressman  or 
United  States  Senator,  cabinet  minister  or  federal 
judge.  John  Jay  resigned  the  office  of  Chief 
Justice  of  the  United  States  to  become  Gover- 
nor of  New  York.  It  was  a  sign  of  the  times. 
The  State  offered  more  than  the  United  States 
to  him  who  sought  a  political  career.  To  be- 
come Governor  was  to  reach  the  summit  of  polit- 
ical grandeur. 

Every  system  of  government  must  be  planned 
to  provide  against  an  interregnum.  The  State  is 
by  nature  perpetual ;  offices  must  not  stand  vacant ; 
civil  functions  must  be  performed.  A  Lieutenant- 
Governor — or,  as  he  was  styled  by  some,  a  Vice- 
President —  was  provided  for.  The  succession 
was    indirect    in    some   States.*      The    Governor 

tion  z'n  re  the  message.  It  originated  in  New  England.  (See 
Massachusetts  Constitution,  1780.) 

*  In  New  England  and  New  York,  the  Lieutenant-Governor; 
but  in  New  Hampshire,  1784,  to  the  senior  Senator,  and  in  1792  to 
the  President  of  the  Senate;  so  Georgia,  1789,  1798,  following 
New  Hampshire  ;  to  Speaker  of  the  Senate  in  Pennsylvania, 
Delaware,  North  Carolina,  Kentucky,  Tennessee. 

S7 


Const  if  lit  ioiial  History  of  tfje  American  People 

was  impeachable.*  Confused  functions  seem  to 
invite  impeachment,  as  in  some  States  he  acted  as 
judge,  legislator,  and  executive.  The  clearer  def- 
inition of  the  powers  exercised  by  the  President 
were  imitated  in  constitutions  adopted  after  1789. 

Of  the  executive  council — thought  at  this  time 
essential  to  the  protection  of  the  people — little  sur- 
vives. Its  original  function  in  provincial  times 
was  to  control  the  administration.  It  was  never  a 
cabinet.  In  the  first  constitutions  it  represented 
popular  distrust  of  the  Governor  of  the  State,  as 
in  earlier  times  it  represented  royal  distrust 
of  the  Governor  of  the  colony.  The  growth  of 
administrative  ofBces  later  meant  the  decay  of 
this  council.  For  a  time  it  stood  for  the  civil 
side  of  executive  power,  as  the  Governor  stood 
for  the  military.  Chosen  usually  by  the  Legis- 
lature, it  began  to  change  in  political  character 
when  the  members  were  elected  in  districts.  Be- 
fore it  had  disappeared,  it  exercised  executive, 
legislative,  and  judicial  functions.  Clearly  the 
Governor  was  a  military  figure  intrusted  with  few 
powers.  It  is  rather  curious  that  though  he  has 
increased  in  authority,  he  is  less  conspicuous  in 
public  affairs  than  he  was  a  hundred  years  ago. 

The  State  courts,  like  the  colonial,  followed  the 
English  type;  but  a  distinct  State  government 
required  appropriate  courts.  The  county  courts 
were  continued,  a  new  court  was  created,  and  the 
two  sets  were  distinguished  as  the  inferior  and  the 

*  New  York,  Virginia,  by  Assembly;  North  Carolina,  "or  by 
presentment  of  grand  jury." 


Jurisprudence  under  the  Constitutions 

superior,  or  supreme.  The  nisi prius  system  was 
about  to  be  changed.  Superior  courts  exercised 
both  a  law  and  an  equity  jurisdiction.  There  were 
courts  of  chancery.  Judges  were  appointed  by  the 
Governor  or  chosen  by  the  Legislature,*  usually 
for  the  term  of  good  behavior.  The  unreasonable- 
ness of  the  age  limit t  on  judges  was  proved  by 
the  appearance  of  Kent's  Commentaries^  after  their 
author  had  been  retired  on  account  of  constitu- 
tional disqualifications  to  continue  a  judge  in  New 
York.  Judges  were  removable.  As  to-day,  the 
jurisdiction  of  the  superior  courts  was  final  in  all 
cases ;  thus  appellate  jurisdiction  was  regulated 
in  each  commonwealth  by  law.  Not  infrequently 
the  judge  was  ex  officio  a  justice  of  the  peace. 
The  superior  courts  were  too  numerous  and  their 
jurisdiction  too  various  to  be  easily  classified. 
They  were  largely  the  creatures  of  the  Legislature. 
Their  titles  help  to  indicate  their  character:  pro- 
bate, admiralty,  orphans',  chancery,  common  pleas, 
oyer  and  terminer.  Their  jurisdiction  was  orig- 
inal, but  not  final,  and  was  both  civil  and  criminal. 
Judicial  functions  were  slightly  confused  with 
executive.  Many  rules  which  had  grown  up  in 
practice  found  their  way  into  the  constitutions. 
Georgia  began  the  innovation  of  defining  juris- 
diction by  specifying  the  money  value  involved  in 
a  case  4  a-  precedent  since  freely  followed.     The 

*  New  Jersey,Virginia,  South  Carolina,  1776;  Tennessee,  1796; 
chosen  by  joint  ballot :  elsewhere  by  Governor. 

t  New  York,  sixty  years ;  New  Hampshire,  1792,  seventy  years. 
X  Georgia,  1777. 

89 


Const  it  uiional  Histoiy  of  the  Aiucrican  People 

courts  met  much  as  at  present,  the  number  of 
sessions  being  regulated  by  law.  Clerks  were  ap- 
pointed by  the  judges.  All  writs  ran  in  the  name 
of  the  commonwealth,  as  previously  in  the  name 
of  the  King.  As  at  present,  litigation  went  on 
chiefly  in  justices'  courts,  and  these  were  the  ob- 
ject of  constitutional  care.  The  justice  was  ap- 
pointed by  the  Governor  or  elected  by  the  Assem- 
bly. Democracy  had  not  yet  secured  control  of 
any  part  of  the  judicial  system.  The  justice  was 
a  local  dignitary  who  wrote  Esquire  after  his  name, 
and  was  commonly  called  the  'Squire.  Usually 
he  continued  in  the  office  for  life  and  prospered  on 
his  fees.  Never  were  a  people  more  given  to  liti- 
gation than  the  Americans  in  the  last  century. 
The  Revolution  bred  innumerable  lawsuits  and 
an  army  of  lawyers  ranging  in  ability  from  John 
Marshall  to  Andrew  Jackson. 

Best  known  in  each  county  was  the  sheriff, 
whose  office  was  the  first  in  importance  after  the 
Representative,  to  be  filled  by  popular  election. 
No  other  official  was  closer  to  the  people,  and 
none  was  of  greater  antiquity.  His  duties,  it  was 
thought,  as  now,  could  not  be  safely  intrusted  to 
any  man  save  for  a  short  time,  and  not  for  succes- 
sive terms.  This  limitation  was  due  to  the  com- 
posite character  of  the  office.  He  was  collector, 
assessor,  executor,  treasurer,  comptroller,  police, 
keeper  of  the  poor,  and  sheriff — all  in  one.  It 
was  his  function  as  custodian  of  public  and  private 
money  that  forbade  re-eligibility  till  the  lapse  of 
years  and  his  successor  had,  as  is  now  said,  "  gone 

90 


Complications  of  Early  Legal  Practice 

over  the  books,"  The  office  was  in  a  state  of 
transition  at  this  time.  As  under  English  law, 
the  sheriff  was  appointed  in  some  States  by  the 
executive ;  in  others  he  was  chosen  by  the  electors. 
He  was  the  second  officer  of  the  court.  The  jury 
system  was  as  yet  unshaken,  and  no  hint  given  of 
its  impending  dissolution.  The  right  of  trial  by 
jury  ranked  high  among  the  fresh  rights  of  man. 
Therefore  the  jury  of  twelve  men  and  the  grand 
jury  of  nearly  twice  the  number  were  conceived  to 
be  pillars  of  the  State.  A  unique  provision  which 
has  not  become  a  precedent  made  the  Supreme 
Court  in  one  State,  Massachusetts,  an  advisory 
council  to  the  Governor  and  Legislature.  Common 
law  practice  was  yet  distinct  from  equity  practice, 
and  the  technical  difficulties  of  real  actions,  plead- 
ings, and  chancery  procedure  made  the  practice 
of  the  law  a  mystery.*  England  soon  after  this 
began  the  simplification  of  practice,  and  America 
has  followed ;  but  the  abolition  of  distinctions  in 
actions  which  characterize  practice  to-day  was  un- 
thought  of  at  this  time.  Not  until  after  the  fed- 
eral judiciary  act  of  1789  did  the  State  systems 
bend  towards  uniformity.  They  were  less  respon- 
sive than  the  executive  or  the  legislative  to  consti- 
tutional revision;  yet,  judicial  reform  of  some 
kind  has  usually  been  proposed  by  a  convention, 
and  in  one  instance  only  the  judicial  article  in  a 
proposed  constitution  escaped  defeat  at  the  poUs.t 

*  Maryland,  1776,  contains  many  provisions,  essentially  only 
rules  of  court. 

t  New  York,  1868. 

91 


Couslilnliondl  History  of  the  American  People 

These  early  courts  were  the  precedent  for  the  fed- 
eral judicial  system,  and  their  virtues  survive  there 
in  the  circuit  court  and  the  life-tenure  of  the  judges 
— the  one  bringing  the  courts  to  the  people,  the 
other  securing  an  independent  judiciary. 

Slavery  was  not  an  aggressive  element ;  one 
State  forbade  importation;'^  two  others,!  cruel, 
treatment  of  slaves,  and  the  latter  provision  be- 
came a  precedent  in  the  South.  A  Representa- 
tive in  Consrress  from  South  Carolina  must  have 
been  qualified  by  the  ownership  of  ten  negroes, 
and  the  requirement  was  in  force  three-quarters 
of  a  century  —  till  abolished  by  the  thirteenth 
amendment.  Delegates  to  the  Congress  of  the 
Confederation  were  chosen  by  the  Legislatures, 
and  subject  to  recall.  Like  Governors  and  mem- 
bers of  the  General  Assembly,  they  were  required 
to  be  freeholders.  No  State  constitution  before 
1789  suggested  the  idea  of  nationality.  Later 
ones  of  the  period,  like  their  successors,  were  si. 
lent  respecting  United  States  Senators.  Their 
election  has  always  been  regulated  by  law.  Per- 
sons of  foreign  birth  were  as  yet  few  in  number, 
but  immigration  from  the  West  Indies  and  the 
British  provinces  made  necessary  some  provision 
for  naturalization. 

The  electors  were  free  white  men.  A  few  elec- 
tors. North  and  South,  were  free  persons  of  color. 
Their  inclusion  in  the  electorate  in  New  Jersey 
and  North  Carolina  was  doubtless  an   oversight. 

*  Delaware,  1792. 

t  Georgia,  1798;  Kentucky,  1799. 

92 


The  IVhites  Debarred  from  the  Franchise 

That  colored  men  voted  in  New  Hampshire,  Mas- 
sachusetts, and  New  Jersey  is  unquestionable.*  In 
a  few  years  public  opinion,  except  in  New  Hamp- 
shire and  Massachusetts,  kept  them  from  the  polls. 
The  majority  of  white  men  were  disqualified  from 
voting.  The  qualifications  for  electors  were  less 
exacting  than  those  for  office-holders.  A  shorter 
residence  and  less  property  were  required. 

*  In  New  Jersey  the  right  was  taken  away  from  them,  from 
aliens,  and  from  females — inhabitatits — by  the  Constitution  of 
1776,  by  act  of  Assembly,  November  16,  1807.  See  debate  on 
"  abrogating  the  right  of  free  persons  of  color  to  vote ;"  Pro- 
ceedings and  Debates  of  the  Convention  of  North  Carolina 
Called  to  Amend  the  Constitution  of  the  State,  which  assembled 
at  Raleigh,  June  4,  1835,  to  which  are  subjoined  the  Convention 
Act,  the  Amendments  to  the  Constitution,  together  with  the  Votes 
of  the  People.  Raleigh,  1836,  pp.  351,  et  seq.  See  also  Curtis's 
dissenting  opinion,  Scott  vs.  Sandford,  19  Howard,  393.  There 
is  no  evidence  that  free  persons  of  color  voted  in  colonial  times. 


Qualifications   of   Electors  Prescribed   by   the   Constitutions 

1776-1S00. 


State 

Const. 

Age 

Residence 

Property 

Taxation 

Religion* 

Sex 

Race 

Native 
OR  Nat- 
uralized 

N  H 

1784 

1792 
1777 

1786 
1793 

21 

21 
21 

21 
21 

Town. 

Town. 
I  year  in 
State. 

Havin  g 
town 
privi- 
leges, 
f  r  e  e  - 
hold. 

Freehold 

Poll-tax 

Male 

Male 
Male 

Male 
Male 

Vt. 

Foreign- 
er after 
I  year's 
r  e  s  i  - 
dence. 

,, 

*  In  New  Hampshire,   Massachusetts,    Connecticut,  and   Vermont   in    the   eighteenth 
century,  most  of  the  electors  were  church  members. 

93 


Cousin II fioiial  History  of  the  American  People 


Qualifications  of  Electors   Prescribed   by  the  Constitutions 
1776- 1800. — Contin  ued. 


State 


Mass. 


N.  Y. 


N.J. 


Pa. 


Del. 


Md. 


Va. 
N.C. 


Const. 


1780 


1777 


1776 

1776 

1790 

1776* 
1792 

1776 


1776* 
1776 


Age  ResidbncEi  Property  Taxation 


I  year  111 
town. 


6  mos.  in 
county. 


12  mos.  in 
county. 

r  year  in 
State. 


2  years  in 

State. 
I  year  in 

county. 


Freehold 
o  f  a  n 
nual  in 
come  of 
.«^3.  or 
es  t  at  e 
oi£,bo. 

Freehold 

of  ;^2  0 

or  pay  - 
ing  rent 
of  4  o  .f. 
F  r  e  e  - 

hold   of 

;flOOtO 

vote  for 
State 
S  e  n  a- 
tor. 

Estate  of 
^50. 


Freehold 
of    50 
acres  or 
prop 
e  r  t  y 
of;^30. 


Taxpay- 
e  r  ,  or 
f  r  e  e  - 
man  of 
Albany 
or  New 
York 
City. 


Taxpay 


State    or 
Co.  tax. 


State    or 
Co.  tax. 


1 2  mos.  in  Freehold  Paidpub 

county,      in  coun-  lie    tax' 

ty  of  50  es,  may 

acres  for  vote  for 

6    mos.  mem 

before  ber     of 

election  H.  C 
mayvote 
forState 
Senator. 


*  Qualifications  "as  fixed  by  law,"  see  Table,  p.  96. 

94 


Religicw 


Sex 


Male 


Male 


Male 
or  fe- 
male 
Male 

Male 


Male 
Male 


Race 


White 


black 


White 


Native 
OR  Nat- 
uralized 


CoiistUutional  Needs  of  Electors 


Qualifications   of   Electors  Prescribed  by  the  Constitutions 
1 7  76- 1 800. — Concluded. 


State 


S.  C. 


Ga. 


Const. 


1776* 
1778 


1790 


1777 


Ky. 


Tenn, 


17S9 


1798 
1792 


1799 
1796 


Age 


I  year  in 
State. 


2  years 
citiz  en 
of  the 
State. 


6  months 
in  State. 


Property 


Taxation 


6  mos.  ii 
count  y 
citizens 
and   in 
habitants 
of    the 
State. 


2  yrs.  in 
State  or 
I  yr.  in 
county. 

6  mos.  in 
county. 


Freehold 
of  50 
acres  or 
town  lot 
or  paid 
taxes 
equal 
to  tax 
o  n  5  o 
acres. 

Same  as 
in  1778. 


Proper 
iyoi£io 
or  being 
of  a  me 
chanic 
trade  or 
a  t  a  X  - 
payer 


If  not 
f  r  e  e  - 
h  older, 
has  paid 
tax  of 
3^.  ster- 
ling. 


Taxpay- 


Freehold 


Acknowl- 
edges 
the  be- 
ing of  a 
Godand 
a  future 
state  of 
rewards 
and 
punish 
ments. 


Sex 


Race 


Male 


Male 


Male 


Male 
Male 


White 


White 


White 


Native 
OR  Nat- 
uralized 


*  Qualifications  "  as  fixed  by  law,"  see  Table,  p.  96. 

95 


k 


Constitutional  History  of  tlje  American  People 


The  Qualifications  of  Electors  as  Prescribed  by  Law. 


State 


Datb  of  Law 


Mass. 
R.  I. 

Conn. 

N.  Y. 

N.J. 
Pa. 


Md. 
Va. 


S.C. 


March  23,  1786 
1762 

1715 

March  27,  1778 

Feb.  22,  1797 
Feb.  15,  1799 


i  Oct.,  17S5  } 
\  Dec.  31,  1796  f 
Law  of  1762-69 


Law  of  1 78 1 
Oct.  7,  1759 


Requirements 


Freeholders  who  pay  one  single  tax,  be- 
sides the  poll,  a  sum  equal  to  two- 
thirds  of  a  single  poll-tax. 

Inhabitants.  ;^40  in  realty,  or  40J.  per 
annum  rent,  or  eldest  son  of  free- 
holder. 

Realty — 40^-.  per  annum,  or  ;^40  in  person- 
al estate. 

Every  mortgagor  or  mortgagee  in  posses- 
sion, and  every  person  possessed  of  a 
freehold  in  right  of  his  wife,  vote  viva 
voce  for  Senators  and  Assemblymen  ; 
by  ballot  for  Governor  and  Lieutenant- 
Governor. 

Free  inhabitants  having  ;i^5o  property,  and 
12  mos.  in  the  county.  Women,  aliens, 
and  free  negroes,  thus  qualified,  voted. 
Citizen  of  State  2  years,  paying  State  or 
county  tax  6  mos.  before  the  election  ; 
sons  of  electors  vote  "  on  age  ";  i.  e.,  at 
21,  without  payment  of  the  tax. 

Free  negroes  not  to  be  electors. 

Free  negroes  antl  women  not  to  be  elec- 
tors ;  an  elector  a  freeman  having  500 
acres  of  land  unsettled,  or  25  acres 
settled,  having  thereon  a  house  12  x  12. 
Elector  voted  in  the  county  in  which 
the  greater  part  of  his  land  lay,  if  il  lay 
in  two  counties. 

Poll-tax — 3^  bu.  wheat,  or  5  pecks  oats,  or 
2  lbs.  sound  bacon.  Repealed  Novem- 
ber, 1 78 1,  and  made  \os . 

Elector — free  white  man  possessing  settled 
freehold  estate,  or  100  acres  unsettled, 
or  ;^6o  in  houses,  or  paying  a  tax  of  los. 


Neither  by  the  Constitution  nor  the  law  were  free  negroes  (males)  de- 
nied the  right  to  vote  in  New  Hampshire,  Vermont,  Massachusetts,  Rhode 
Island,  Connecticut,  New  York,  New  Jersey,  Pennsylvania,  or  Tennessee. 
There  is  evidence  that  they  voted  in  New  Jersey  from  1776  to  1807  (see 
act  of  November  16,  1807,  limiting  the  right  to  vote  to  free  white  male 
citizens);  in  New  York  (acts  of  March  27,  1778;  April  11,  1815;  April  19, 
1822);  in  Pennsylvania  under  Constitution  of  1776  (see  debate  on  inserting 
the  word  "  white,"  as  descriptive  of  the  elector,  in  the  report  of  the  Con- 
stitutional Convention  of  1838);  in  North  Carolina  (see  debate  on  "  abrogat- 

96 


Property  the  Qiialification  for  the  Franchise 

ing  the  right  of  free  persons  of  color  to  vote,"  under  Constitution  of  1776, 
in  debates  of  the  Constitutional  Convention  of  1835);  in  Tennessee,  from 
1776  to  1834  (see  Caldwell's  Co7istitutional  History  of  Tennessee,  p.  93,  and 
compare  the  qualifications  of  the  elector  under  the  two  constitutions).  In 
New  England,  if  the  town-meeting  admitted  the  free  negro  to  a  citizen's 
rights.he  couldvote.  Public  opinion  in  Rhode  Island  refused  him  admittance 
(see  Constitutional  Convention,  1S18,  Art.  vi.,  Sec.  2 ;  and  of  Rhode  Island, 
1842,  Art.  ii..  Sees,  i,  2).  It  was  not  an  established  right  in  law,  in  1842, 
that  a  person  having  African  blood  in  his  veins  could  be  a  citizen  of  the 
United  States;  he  could  not  become  such  by  naturalization,  as  the  law  re- 
stricted naturalization  to  white  men.  Free  persons  of  color  were  denied 
the  right  to  vote  in  New  Jersey,  by  act  of  Assembly,  in  1807  ;  in  Tennes- 
see, by  the  Constitution  of  1834  ;  in  North  Carolina,  by  constitutional 
amendment,  in  1835  ;  in  Pennsylvania,  by  the  Constitution  of  1838.  Thus, 
of  the  States  that  originally  allowed  them  the  right, New  Hampshire,  Ver- 
mont, Massachusetts,  and  New  York  never  withdrew  it. 

One  trial  was  made  of  compulsory  voting,  and 
abandoned.  It  is  impossible  to  know  accurately 
the  number  of  electors.  It  may  be  estimated  at 
not  more  than  one  hundred  and  fifty  thousand  in 
a  population  of  five  millions.  Had  the  suffrage 
of  to-day  prevailed,  there  would  have  been  during 
these  twenty-five  years,  at  any  election,  not  fewer 
than  seven  hundred  thousand  nor  more  than  one 
million  voters. 

The  landless  man,  it  was  thought,  could  not  be 
trusted.  Universal  suffrage,  as  we  know  it,  was 
not  thought  of.  The  voters  and  office-holders 
comprised  a  landed  aristocracy.  Property  was  the 
basis  of  government,  and  continued  to  be,  in  the 
older  States,  for  more  than  fifty  years.  But  the 
struggle  for  the  extension  of  the  franchise  began 
before  the  century  was  over,  and  won  its  first  vic- 
tories when  new  States  were  admitted  early  in  the 
nineteenth  century. 

The  men  who  made  these  early  instruments 
I.— G  97 


CoustHiitional  History  of  the  American  People 

realized  that  they  might  prove  only  temporary, 
and  provided  for  their  amendment  and  revision. 
To  the  Legislatures  was  left  the  initiative.  Penn- 
sylvania and  Vermont  created  a  Council  of  Censors 
to  guard  the  constitution  and  suggest  changes.* 
To  prevent  hasty  ones,  some  States  made  it  pos- 
sible to  make  periodical  revision.  The  electors 
were  not  consulted  in  making  many  of  these  con- 
stitutions ;  but  amendments  and  revisions  were 
usually  made  with  their  consent.  In  some  States 
changes  were  difficult  to  make,  the  elements  nec- 
essary to  effect  them  not  being  likely  to  work 
harmoniously  at  one  time.  Gradually  the  proc- 
ess of  amendment  became  simpler,  and  to  the 
electors  the  Legislature  submitted  changes  and 
the  question  of  calling  a  convention.  Gradually, 
also,  the  practice  prevailed  of  submitting  the  work 
of  the  convention  to  the  electors  that  it  might  re- 
ceive their  ratification.  This  has  become  the 
normal  procedure. 

What,  then,  were  the  distinguishing  features  of 
this  body  of  eighteenth -century  supreme  law.? 
Not  least  in  importance  was  its  civil  character  :  it 
departed  from  feudal  precedents  and  organized 
government  on  a  peace  footing.  Unlike  the  early, 
and  some  later,  constitutions  of  the  South  Ameri- 
can republics,  and  the  written  constitutions  of  the 
continent,  it  contained  no  provisions  that  can  be 
called  military  in   character.      Political   and   civil 

*  Report  of  Pennsylv'ania  Censors  in  Proceedings  of  Conven- 
tions of  1776,  1789,  Harrisburg,  Part  fii.  The  Reports  of  the 
Vermont  Censors  are  in  some  twenty  volumes,  down  to  1870. 

98 


Individualism  Dominating  Politics 

rights  were  stated  as  their  own  best  defence. 
American  democracy  thus  made  a  unique  contri- 
bution to  the  social  evolution  of  the  race.  These 
constitutions,  and  the  national  —  adopted  amid 
and  largely  from  the  earlier  of  them — proclaimed 
that  a  new  political  opportunity  had  come.  It  was 
equality  of  the  eighteenth-century  kind,  but  purer 
and  more  accessible  than  before.  In  spite  of  the 
confusion  of  functions,  the  constitutions  worked. 
Henceforth  the  people  should  rule  by  divine  right. 
It  is  safe  to  smile  at  the  idea  now — as  the  heresy 
was  promulgated  long  ago.  But  amid  our  smiles 
and  disappointments  we  still  cling  hopefully  to 
the  heresy,  believing  that  it  is  not  too  good 
to  be  true.  Universal  suffrage  looks  back,  with 
some  impatience  and  more  pity,  wondering  that 
the  fathers  applied  the  theory  of  equal  rights  so 
badly.  Theirs  was  the  age  of  things — ours  of 
persons.  The  basis  of  government  has  changed. 
The  privileges  of  caste  have  been  thrust  back  by 
the  forces  of  universal  suffrage. 

Many  seeds  of  rivalry  were  sown  in  these  con- 
stitutions. England  was  the  land  of  privileges  of 
birth  and  property,  and  the  Americans  were  Eng- 
lishmen of  yesterday.  It  was  an  age  of  theories 
in  government ;  ours  is  one  of  theories  in  econ- 
omy. Debating  clubs  discussed  propositions  then 
that  we  hold  as  political  axioms  now.  Running 
through  the  whole  political  estate  was  individual- 
ism, the  dominating  notion  of  the  times.  Reading 
between  the  lines — or,  to  speak  more  truly,  read- 
ing later  experience  into  them — we  detect  ideas 

99 


Const  it  iifioihil  H/storv  of  the  American  People 

which  were  the  political  straws  left  on  the  field 
after  the  harvest  of  independence.  Whatever  we 
may  think  of  the  new  governments,  they  fixed 
the  ancient  landmarks,  which  have  never  been 
removed. 


CHAPTER   IV 
THE   TRANSITION   OF   INDEPENDENT   STATES 

The  colonization  of  America,  as  carried  on  by 
Englishmen,  proceeded  according  to  feudal  notions. 
To  individuals  and  companies  the  Crown  granted 
charters  as  to  feudal  chiefs.  Raleigh  dreamed  of 
a  profitable  tenantry  and  a  long  rent-roll  in  Amer- 
ica. All  the  companies  were  close  corporations, 
animated  by  much  the  same  spirit  as  Raleigh.  A 
continent  in  a  state  of  nature  produces  democracy. 
The  economic  schemes  of  feudalism  failed ;  but 
the  system  took  political  possession  of  the  coun- 
try, and  held  on  until  democracy  dislodged  it  with- 
in the  memory  of  the  living.  The  tenacious  grasp 
was  clear  in  the  first  State  constitutions,  and  is 
traceable  in  those  of  our  own  times.*  All  govern- 
ment emanated  from  the  Crown.  The  idea  is  still 
good  in  politics,  and  was  long  paramount  in  law. 
Charter  privileges,  in  the  early  days,  were  exclu- 
sively for  the  members  of  the  corporation,  but 
immigration  speedily  compelled  a  change.  The 
corporation  was  enlarged.  This  was  the  first  re- 
form in   representation,  the  first  extension  of  the 


*  The  principal  authorities  for  this  chapter  are  the  proceedings 
of  the  Legislatures  and  conventions  referred  to.     See  note,  p.  29. 


CoiistHiiiional  History  of  the  American  People 

suffrage.  The  record  of  it  fills  the  early  annals 
of  Massachusetts.  It  was  typical  of  that  going  on 
in  one  form  or  another  in  all  the  colonies,  and  con- 
tinued long  after  they  became  States.  It  is  a 
present  issue. 

The  unit  of  political  measure  was  the  town  in 
the  North;  in  the  South,  the  county.  Some  old 
towns  claimed  an  equal  right  of  representation 
with  counties.  For  a  time  it  was  o-ranted  them.* 
Colonial  isolation  compelled  representation  in  local 
government,  and  ultimately  in  federal.  Much  of 
the  emphasis  which  has  been  put  upon  the  right 
of  representation  is  rather  due  to  the  economic 
character  of  the  constituencies.  Social  efficiency 
was  feeble.  Self-protection  compelled  resort  to 
some  system  of  representation.  The  Virginia 
General  Court  of  1619,  with  which  our  Legislat- 
ures begin,  exercised  the  functions  of  a  judicial 
body  and  some  functions  of  a  legislative.  It  is 
not  clear  that  James  the  First  intended  to  estab- 
lish an  American  Parliament.  The  House  of 
Stuart  was  not  in  the  habit  of  laying  such  demo- 
cratic foundations.  Nor  is  it  probable  that  the 
King  called  the  House  of  Burgesses  into  being 
merely  to  vex  the  posterity  of  his  enemies.  The 
Virginia  Assembly  was  a  necessity,  and  the  charter 
was  interpreted  accordingly.  It  was  an  early  in- 
stance of  the  administrative  making  the  consti- 
tutional.    The  men  who  mana2:ed  what  were  called 

*  As  in  Virginia.  The  towns  or  boroughs  preponderated  in  1619, 
whence  their  delegates  gave  the  name  House  of  Burgesses  to  the 
Assembly. — Stith's  Virginia,  p.  160. 

102 


Greed  Prompted  Representative  Institutions 

in  the  seventeenth  century  the  "adventures  to 
America  "  had  their  goal  in  gain.  Therefore  they 
courted  immigration.  History,  we  are  told  often, 
and  incorrectly,  repeats  itself.  History  simply  re- 
cords that  the  principles  of  human  action  remain 
the  same.  When,  two  hundred  and  fifty  years 
after  Captain  John  Smith  and  the  Pilgrim  Fathers, 
foreign  immigration  poured  into  the  Far  West, 
under  the  stimulus  of  the  great  railroad  companies, 
the  tactics  of  the  directors  of  the  London  Com- 
pany of  1611  were  repeated.  To  induce  popula- 
tion, the  corporations  and  proprietaries  of  colonies 
offered  rare  privileges  to  all  who  would  come,  and 
the  Crown,  yielding  to  influence,  permitted  politi- 
cal privileges,  of  which  the  most  important  was  the 
right  to  choose  a  colonial  Assembly.  Thus  repre- 
sentative government  in  America  owes  much,  if 
not  all,  to  the  love  of  gain.  Until  the  excuse  be- 
came a  travesty — and  the  farce  ran  on  for  more 
than  a  hundred  years — colonization  Vv^as  carried 
on  for  the  purpose  of  propagating  the  Christian 
religion  among  the  Indians  and  bringing  them 
"  to  human  civility  and  to  a  settled  and  quiet  gov- 
ernment." When  the  last  piece  of  colonization 
was  attempted  the  purpose  was  no  longer  veiled ; 
the  people  of  Georgia  were  to  destroy  the  savages 
and  increase  the  trade,  navigation,  and  wealth  of 
the  realm.* 

American  colonization  was  primarily  a  commer- 
cial venture,  and  the  price  paid  for  it  was  repre- 

*  Charter,  1732, 
103 


Constitutional  History  of  tijc  American  People 

sentative  government.  The  few  who,  in  some  col- 
onies, sought  "freedom  to  worship  God"  soon 
caught  the  infection  of  the  age,  and  as  time  passed 
developed  a  masterful  leadership  in  trade  and 
commerce.  Written  in  the  light  of  results,  the 
history  of  the  colonies  is  economic,  and  the  ecclesi- 
astical is  not  the  controllins:  element.  It  was 
found  that  they  could  not  prosper  unless  po- 
litical privileges  demanded  by  the  people  were 
granted.  The  three  Virginia  charters  illustrate 
this. 

Political  organization  took  a  form  tending  to 
the  democratic.  In  Massachusetts  the  corporation 
was  a  distinct  class.  Only  after  great  compulsion 
did  it  consent  to  receive  new  members,  and  these 
of  its  own  choosing.  It  set  qualifications  which 
still  kept  the  mass  of  the  population  out  of  the 
political  organization.  Necessity  dictated  reform. 
If  it  were  denied,  the  reformers  would  emigrate 
and  establish  a  new  colony.  The  struggle  began 
in  1633,  and  was  the  beginning  of  that  for  the 
extension  of  the  suffrage  and  for  equitable  repre- 
sentation. Roger  Williams  grounded  his  demands 
on  economic  equities,  long  familiar  to  later  gener- 
ations in  the  saying  that  taxation  and  representa- 
tion go  together.  Rhode  Island  was  as  much  the 
fruit  of  this  doctrine  in  the  seventeenth  century 
as  American  independence  in  the  eighteenth.  In 
granting  the  reform,  Massachusetts  prescribed  con- 
ditions which  may  be  called  the  first  American 
electoral  qualifications.  They  regulated  the  politi- 
cal life  of  the  province.     The  conditions,  some- 

104 


Conflicting  Notions  Concerning  Representation 

what  modified,  continued  until  1S20.  and,  further 
modified,  to  the  present  time. 

In  attempting  to  measure  the  forces  which  have 
shaped  democracy  in  this  country,  that  of  individ- 
uahsm  must  be  assigned  perhaps  the  first  rank. 
It  has  dominated  our  laws  and  constitutions.  It 
was  bred  by  the  economies  of  colonial  life.  Pro- 
vincial Assemblies  legislated  in  its  interest.  That 
each  must  protect  his  own  was  the  dominating 
spirit  of  colonial  life.  Eventually  the  idea  got  in 
the  saddle,  became  the  controlling  principle  of  a 
political  party,  and  overran  the  laws  and  consti- 
tutions  of  the  country. 

By  1640  the  idea  of  representation  was  well 
established  in  Massachusetts,  and  the  rights  of 
individuals  and  of  towns  were  the  two  halves  of 
the  political  idea.  The  town  idea  was  communal. 
This  early  division  has  continued  to  our  own 
times,  and  in  its  history  worked  out  two  groups 
of  political  thinkers :  one  basing  government  on 
persons ;  the  other  basing  it  on  corporations.  The 
idea  has  had  many  applications.  That  of  greatest 
moment  has  emphasized  the  national  as  distin- 
o^uished  from  the  commonwealth  idea:  the  nation 
being  founded  on  individuals,  as  intimated  in  the 
phrase  "  we  the  people  of  the  United  States  ";  the 
commonwealth  being  a  political  corporation. 
Under  the  charter  of  1629  there  grew  up  in 
Massachusetts  three  political  groups  —  first,  the 
executive,  comprising,  by  the  terms  of  the  charter, 
the  governor,  the  deputy-governor,  and  the  assist- 
ants ;   secondly,  these   persons    and   the    deputies 


Consiituiional  History  of  the  American  People 

from  the  towns,  together  constituting  the  general 
court,  or  Legislature ;  and,  thirdly,  the  freemen, 
who  participated  at  regular  times  in  the  town  elec- 
tions. Of  these  groups,  the  first  and  second  repre- 
sented the  qualified  electors,  or  freemen.  At  first 
the  governor,  deputy-governor,  and  assistants  were 
chosen  at  the  town  elections,  but  when  the  charter 
was  vacated  the  executive  became  a  Crown  officer. 
There  was  no  effort  in  Massachusetts  to  copy  after 
the  British  Parliament.  The  assistants  were  not 
analogous  to  the  Lords,  neither  were  the  deputies 
chosen  out  of  analogy  to  the  members  of  the 
House  of  Commons.  Nowhere  in  the  colonies  did 
the  analogy  prevail.  Not  as  yet  was  there  an  equit- 
able apportionment  of  representation.  No  clear 
idea  of  proportional  representation  was  evolved  in 
England  or  America  during  the  seventeenth  cen- 
tury. After  the  adoption  of  the  national  Consti- 
tution it  became  necessary  to  work  out  the  idea, 
and  it  remains  a  permanent  though  a  partly 
solved  problem. 

Not  until  the  seventeenth  century  was  almost 
over  did  the  Crown  fully  recognize  the  right  of  the 
colonies  to  choose  representatives  to  their  local 
Assemblies.  It  was  specifically  acknowledged  in 
the  Connecticut  charter  of  1662,  in  the  Rhode 
Island  charter  of  the  following  year,  and  in  the 
Massachusetts  charter  of  1692.  It  was  recognized 
because  the  Revolution  of  1648  in  England  had 
demonstrated  that  there  were  constitutional  limits 
to  executive  authority,  and  the  Crown  realized  that 
a  monarchical  form  of  government  could   not  be 

106 


Formation  of  Two  Legislative  Chambers 

administered  in  England  without  a  formal  recog- 
nition of  them.  Experience  in  the  administration 
of  government  both  in  England  and  America  led 
to  the  formal  recognition,  by  the  British  Crown 
and  Parliament,  of  the  ancient  and  undoubted 
rights  of  Englishmen  to  choose  their  own  repre- 
sentatives. In  England  these  were  the  members 
of  the  House  of  Commons ;  in  America,  of  the 
General  Assemblies. 

In  the  earlier  part  of  the  seventeenth  century 
the  Governor  and  his  council  or  assistants  and  the 
deputies  of  the  towns  met  in  the  same  room.  The 
first  meeting  of  the  House  of  Burgesses  of  Virginia 
was  with  the  Governor.  The  beginning  of  the 
bicameral  system  in  this  country  was  in  Massa- 
chusetts, where  as  early  as  1635  there  arose  a  dif- 
ference of  opinion  between  the  assistants  and  the 
deputies  of  the  towns,  respecting  the  request  of 
some  inhabitants  of  Newtown  who  wished  to 
migrate  into  Connecticut.  This  led  to  the  separa- 
tion of  the  assistants  and  the  deputies,  which  was 
essentially  the  formation  of  the  two  Houses  of  the 
Legislature.  In  1644  the  two  groups,  assistants 
and  deputies,  agreed  in  enacting  a  law  that  thence- 
forth they  should  sit  apart  as  co-ordinate  bodies. 
Evidently  the  bicameral  system  thus  begun  was 
quite  as  much  of  native  origin  as  a  copy  of  the 
home  government.  Thirty -four  years  later  the 
two  parts  of  the  Connecticut  Assembly  were  recog- 
nized by  law,  and  before  the  century  closed  custom 
there  compelled  the  Governor  and  council  to  sub- 
mit their  several   propositions  to  the  entire  legis- 

107 


Coiislifiitioiial  Histoiy  of  the  American  People 

lative  body  for  approval.  In  October,  1698,  the 
council  in  Connecticut  was  for  the  first  time  styled 
the  Upper  House  and  the  deputies  the  Lower. 

Thus  almost  coincident  with  the  time  when  the 
New  York  Assembly  set  forth  the  principles  of  the 
bills  of  rights,  the  bicameral  system  was  estab- 
lished in  America.  In  the  New  England  colonies 
the  democratic  element  was  stronger  than  in  any 
to  the  south  ;  for  the  first  charter  of  Massachusetts 
and  those  of  Connecticut  and  Rhode  Island  for- 
mally recognized  the  right  of  freemen  to  partici- 
pate in  the  government.  In  the  proprietary  and 
royal  colonies  no  such  right  was  recognized  by 
charter,  although  it  came  to  be  recognized  by 
custom.  To  this  Pennsylvania  was  an  exception. 
Penn  planned  from  the  first  a  government  demo- 
cratic in  form,  promising  his  people  that  they 
should  have  law- makers  of  their  own  choosing 
and  laws  of  their  own  making;  but  the  system 
of  the  referendum  which  he  attempted  to  intro- 
duce, by  which  the  Governor  and  council  were  to 
submit  laws  to  the  representatives  of  the  people, 
proved  cumbrous  and  unsatisfactory.  The  recog- 
nition which  Penn  gave  to  the  rights  of  the  peo- 
ple forever  settled  the  question  of  free  govern- 
ment in  his  province. 

Three  years  before  Penn  inaugurated  his  "  holy 
experiment,"  a  royal  commission  provided  that 
the  Governor  of  New  Hampshire  should  himself 
prepare  the  laws,  with  the  approval  of  his  council 
and  the  deputies  of  the  people;  but  in  1680  a  law 
of   New    Hampshire   provided   that    no   executive 

108 


Preponderance  of  Democratical  Ideas 

ordinance  should  go  into  effect  unless  it  had  been 
made  by  the  deputies  of  the  people  and  approved 
by  the  president  and  council.  Thus  the  order  of 
the  initiative  in  legislation  was  reversed  and  dis- 
tinct functions  recognized  in  the  two  branches  of 
the  Legislature — one  comprising  the  deputies,  the 
other  the  Governor  and  council.  This  reversal  in 
New  Hampshire  was  made  necessar}?^  by  the  con- 
ditions of  colonial  life.  The  Governor  could  have 
no  peace  if  he  attempted  to  govern  in  any  other 
way.  This  was  the  experience  of  all  the  royal 
governors.  Pennsylvania  and  Georgia  through- 
out their  colonial  history  had  but  one  legislative 
House.  The  executive  council,  though  not  nomi- 
nally exercising  the  functions  of  a  separate  House, 
was  one  in  fact ;  the  council  was  more  numerous 
than  in  other  colonies  and  showed  no  marked 
antagonism  to  the  more  popular  branch. 

From  the  democracy  of  the  colonial  era  evolved 
the  later  civil  functions  of  the  commonwealths.* 
Of  these  the  legislative  was  of  greatest  impor- 
tance and  destined  to  continue,  with  slight  modi- 
fications, to  the  present  time.  Though  the  Legis- 
lature in  eleven  colonies  consisted  of  two  Houses, 
it  was  the  Lower  House — the  deputies — which 
developed  as  the  central  authorit}^  in  the  colony. 
This  House  was  the  voice  of  the  politically  quali- 

*  The  principal  authorities  for  the  account,  in  this  chapter,  of 
the  transition  from  colonies  to  commonwealths  are  the  journals 
and  proceedings  of  the  first  State  constitutional  conventions,  and 
Proviiicial  Congresses.  See  note,  p.  29.  The  bibliography  is 
nearly  complete  in  the  State  Library  Bulletin,  additions  No.  2. 
Albany  (November),  1894,  pp.  266-277. 

109 


CoiisfHiifioihil  History  of  the  American  People 

fied  freeman.  It  was  the  only  part  of  the  colonial 
government  directly  responsible  to  the  people. 
The  Upper  House  in  Rhode  Island  and  Connecti- 
cut was  similarly  constituted,  but  in  the  other 
colonies,  excepting  Pennsylvania  and  Georgia, 
the  council  was  appointed  by  the  executive  and 
assisted  him  in  executive,  judicial,  and  administra- 
tive duties.  The  colonial  Governor,  except  in 
Connecticut  and  Rhode  Island,  was  appointed 
either  by  the  Crown  or  the  proprietary,  and  was  a 
foreign  element  in  the  colonial  organization.  The 
meeting  of  chief  importance  to  the  freemen  was 
the  annual  or  semi-annual  election  at  which  dep- 
uties were  chosen.  With  slight  exception,  the 
right  to  vote  was  limited  to  persons  possessing  a 
prescribed  amount  of  real  estate  who  also  were 
members  of  a  religious  sect.  They  also  were 
required  to  reside  for  a  prescribed  time  in  the 
town  in  which  they  voted,  although  this  was  of 
less  importance  than  now,  as  there  was  relatively 
little  change  of  residence  in  colonial  times.  The 
principal  difference  between  the  qualifications  of 
the  elector  and  the  elected  was  in  the  amount  of 
property  required. 

In  May,  1 775,  while  yet  the  Continental  Congress 
was  in  session,  the  Provincial  Cono^ress  of  Massa- 
chusetts  asked  for  advice  respecting  the  reorgani- 
zation of  the  government  of  the  province.  Al- 
ready the  Revolution  had  almost  transformed 
the  colonies  into  commonwealths.  The  complete 
transition  was  comparatively  easy.  At  the  pres- 
ent time,  a  region  is  set  off  by  Congress  as  a  Terri- 


The  Transition  into  States 

tory,  in  expectation  that  it  will  in  due  time  apply 
for  admission  to  the  Union  as  a  State  on  an 
equal  footing  with  the  older  States.  The  pro- 
ceeding throughout  is  regulated  by  the  Constitu- 
tion and  the  laws.  No  analogous  regulation  ex- 
isted when  the  petition  of  Massachusetts  was 
made  to  the  Congress  of  1775.  That  body  had 
no  authority  to  prescribe  any  procedure,  and  no 
precedent  for  one  existed.  Yet  the  request  of 
Massachusetts  was  soon  followed  by  similar  ones 
from  New  Hampshire,  Virginia,  and  South  Caro- 
lina, and  the  course  of  events  compelled  reply. 
To  Massachusetts,  Congress  replied  in  June,  rec- 
ommending its  provincial  convention  to  request 
the  several  towns  entitled  to  send  deputies  to  the 
General  Court  to  choose  them  in  the  usual  manner 
and  to  instruct  them,  when  convened  in  Assem- 
bly, to  choose  the  colonial  councillors  as  provided 
for  in  the  charter  of  1692.  This  advice  was  fol- 
lowed, and  the  government  thus  established  in 
Massachusetts  continued  until  supplanted  by  that 
of  1780.  To  the  requests  of  the  other  colonies 
Congress  replied,  on  the  3d  and  4th  of  No- 
vember, 1775,  but  only  by  way  of  advice,  urging 
them  to  summon  a  free  representation  of  the 
States  in  order  to  establish  "  such  a  form  of  gov- 
ernment as  in  their  judgment  will  best  promote 
the  happiness  of  the  people  and  most  effectually 
secure  peace  and  good  order  in  their  colony  dur- 
ing the  continuance  of  the  dispute  with  Great 
Britain."  Congress  was  unwilling  even  to  give 
this  somewhat  evasive  advice.     Public  sentiment 


Constiiiifimal  History  of  the  American  Teople 

had  so  profoundly  changed  that  the  transition 
from  colonies  to  commonwealths  could  be  more 
easily  made  than  many  in  Congress  realized. 
These  were  Revolutionary  times;  public  sentiment 
was  changing  from  day  to  day,  and  the  true  status 
of  public  affairs  was  difificult  of  definition.  Yet 
the  colonies  were  not  without  means  of  guidance. 
The  civil  organization  with  which  each  was  best 
familiar  was  a  sufficient  basis  for  a  new  one.  The 
Lower  House  of  the  General  Assembly  was  the 
nucleus  for  a  reorganization  of  the  government.  It 
is  clear  enough  now  that  the  normal  procedure 
would  have  been  for  the  Assembly  in  each  colony 
to  provide  for  the  election  of  delegates  to  a  con- 
stitutional convention  which  should  formulate  a 
plan  of  government,  and  submit  it  to  the  qualified 
electors.  If  approved  by  them  it  should  become 
the  supreme  law  of  the  State.  This  procedure, 
however,  was  almost  out  of  the  question  in  most 
of  the  colonies.  John  Adams  had  declared  in 
Consfress  that  the  work  of  orfjanizino:  the  com- 
monwealths  on  the  basis  of  colonies  "  could  be 
done  only  by  conventions  of  representatives  chos- 
en by  the  people  in  the  several  colonies  in  the 
most  exact  proportions."  But  Adams  was  ahead 
of  his  time.  It  was  not  until  the  loth  of  May, 
1776,  that  Congress  adopted  the  decisive  resolu- 
tion, recommending  "  to  the  several  Assemblies 
and  conventions  of  the  United  Colonies  "  where 
no  government  sufficient  to  the  exigencies  of  their 
affairs  was  established,  to  adopt  one  "  best  con- 
ducive to  the  happiness  and  safety  of  their  con- 


Abnormal  Civil  Procedure 

stituents  in  particular  and  America  in  general." 
This  involved  the  independence  of  the  United 
States,  and  was  opposed  by  all  who  still  trusted  in 
a  reconciliation.  It  would  appear  from  the  lan- 
guage of  the  resolution  that  the  work  of  reorgan- 
ization was  to  emanate  from  the  colonial  Assem- 
blies, or  their  successors,  known  in  some  colonies 
as  the  Provincial  Congress  or  colonial  convention. 
Times  were  pressing,  and  ft  seemed  advisable  to 
reorganize  the  colonial  governments  as  soon  as 
possible.  This  may  extenuate  the  fault,  if  there  be 
any,  in  the  advice  which  Congress  gave.  Doubt- 
less it  seemed  unadvisable  that  the  organization  of 
representative  government  should  be  delayed  in 
any  colony  by  the  mere  preliminary  procedure  nec- 
essary to  the  calling  of  a  normal  constitutional 
convention.  The  precedent  which  this  Congres- 
sional resolution  suffered  to  be  set  up  may  be  said 
to  have  dominated  the  States  during  the  eighteenth 
century,  for  during  the  years  from  1775  to  1800  it 
was  the  exception  when  a  State  followed  what 
later  times  recognize  as  the  normal  course  to  ob- 
tain a  constitution. 

Within  two  weeks  NewHampshire  followed  the 
advice  of  Congress.  Its  Assembly,  which  called  it- 
self a  provincial  convention,  decided  that  a  new 
convention  should  be  summoned.  For  this  pur- 
pose a  census  of  the  inhabitants  was  taken  and  the 
delegates  chosen  were  apportioned  to  the  number 
of  electors  in  the  colony,  and  empowered  to  exer- 
cise the  functions  of  government  for  one  year. 
They  met  on  the  2 1  st  of  December  at  Exeter, 
I.— H  113 


Const iliiiioihil  History  of  the  American  Tcople 

and  made  the  first  constitution  for  that  State.* 
They  called  their  body  a  Congress  and  assumed 
other  functions  than  that  of  making  a  State  consti- 
tution. The  convention  took  unto  itself  the  title 
and  authority  of  a  House  of  Representatives,  and, 
following  the  advice  of  Congress,  elected  twelve 
persons  to  be  Councillors  and  to  comprise  the  oth- 
er House.  The  form  of  government  was  intended 
to  be  only  provisional.  Had  peace  between  Great 
Britain  and  the  colonies  been  restored,  the  govern- 
ment thus  inaugurated  would  have  been  dissolved 
and  the  colonial  organization  restored.  The  con- 
vention, therefore,  was  not  a  normal  constitutional 
convention,  but  a  composite  body,  of  revolutionary 
character,  chosen  under  peculiar  circumstances 
and  exercisino:  functions  which  in  times  of  reo'ular 
civil  administration  are  never  exercised  by  the  same 
authority ;  for  this  convention  exercised  executive, 
legislative,  and  judicial  functions.  The  Upper 
House,  or  Council,  being  a  creation  of  the  Lower, 
the  traditional  division  of  the  Legislature  into  tw^o 
branches  can  hardly  be  said  to  have  been  followed.! 

*  Most  of  the  towns  of  the  State  were  represented  by  the  sev- 
enty-six delegates  to  the  Exeter  Congress.  Matthew  Thornton 
was  one  of  the  signers  of  the  Declaration  of  Independence  ;  three 
members  were  delegates  to  the  Continental  Congress  —  these 
three  and  one  other  to  the  National  Congress.  Two  committees 
were  appointed  to  bring  in  a  constitution ;  that  oi  five  consisted  of 
Matthew  Thornton,  Meshech  Weare,  Ebenezer  Thompson,  Wyse- 
man  Cloggett,  Benjamin  Giles.  The  original  draft  is  said  to  be  in 
John  Hurd's  hand.  General  John  Sullivan,  though  not  a  mem- 
ber, had  made  important  suggestions.  Weare  became  Governor 
in  1776;  Sullivan,  in  1790.  See  Provincial  Papers,  vii. ;  State 
Papers,  viii. 

t  New  Hampshire  Provincial  Papers,  'Vol.  vii.,  pp.  644  et  seq. 

114 


Some  Conventions  and  Their  Results 

It  was  not  long  before  the  autocratic  character  of 
the  new  government  caused  popular  dissatisfaction, 
and  on  the  loth  of  June,  1778,  there  assembled 
at  Concord  another  convention,  which  continued 
in  session  nearly  a  year,  during  which  time  a  new 
constitution  was  drawn  up  and  submitted  to  the 
several  towns  for  approval.  This  constitution  was 
rejected,  and  on  the  second  Tuesday  of  June,  1781, 
a  third  convention  assembled  at  Exeter,  continuing 
in  session  two  years  and  a  half.  A  new  constitu- 
tion was  made  during  its  nine  sessions.  Mas- 
sachusetts, meanwhile,  had  adopted  a  constitution, 
which  was  closely  followed  by  New  Hampshire. 
At  last,  approved  by  the  people  in  their  town-meet- 
ings, the  new  constitution  was  duly  inaugurated 
with  much  ceremony  on  the  2d  of  June,  1784. 
It  has  been  observed  by  legal  writers  that  the  New 
Hampshire  conventions  of  1778  and  1781  were 
strictly  constitutional  conventions,  because  they 
were  summoned  in  due  form  by  the  authority  of 
the  existing  government  of  the  State ;  their  dele- 
gates were  duly  chosen  for  a  specific  purpose,  and, 
met  in  convention,  they  formulated  a  plan  of  gov- 
ernment which,  having  been  submitted  to  the 
electors  in  their  several  town  -  meetings,  was  duly 
ratified. 

On  the  ist  of  November,  1775,  the  Provincial 
Congress  of  South  Carolina  proceeded  to  frame 
the  first  constitution  of  that  State,  adjourning  on 
the  26th  of  March  of  the  following  year.  This 
Congress  originated  as  a  committee  of  the  colony, 
a   body    distinct   from    the    colonial    Legislature. 

115 


Consi-itiitional  History  of  the  Aimrican  People 

Like  the  first  constitution  of  New  Hampshire, 
this  of  South  CaroHna  was  to  exist  until  a  rec- 
onciliation between  Great  Britain  and  the  colonies 
should  be  made.  The  precedent  for  South  Caro- 
lina was  obviously  the  analogous  parts  of  the  Brit- 
ish government.  The  procedure  in  South  Carolina 
was  abnormal.  The  convention  was  revolutionary 
in  character  and  originated  not  in  any  direct  act  of 
authority  of  the  government  of  the  colony,  but  in 
the  advice  of  Congress.*  The  constitution  thus 
framed  was  not  ratified  by  the  electors  and  did  not 
give  general  satisfaction,  though  acquiesced  in  dur- 
ing the  stress  of  Revolutionary  changes.  On  the 
5th  of  January,  1778,  the  General  Assembly,  though 
not  specifically  chosen  to  make  a  constitution  for 
the  State,  promulgated  one.  Between  the  meeting 
of  the  first  and  the  second  conventions  of  South 
Carolina,  the  Declaration  of  Independence  had  been 
issued,  and,  chiefly  in  consequence  of  this  act  and 
all  it  implied,  the  people  of  the  State  acquiesced 
more  willingly  in  this  second  constitution.  But  it 
was  of  no  greater  validity  than  an  act  of  Assembly, 
and  was  so  held  by  the  Supreme  Court  of  the  State. 
Obviously  those  who  made  it  did  not  comprise  a 
constitutional    convention,    for    they    lacked    the 

*  The  classic  treatise  on  Constittitiotial  Conventions,  their  His- 
tory, Powers,  and  Modes  of  Proceeding,  by  John  Alexander 
Jameson,  LL.D.,  late  Judge  of  the  Superior  Court  of  Chicago,  Il- 
linois; Chicago,  Callaghan  &  Co.  (fourth  edition),  1887,  remains 
the  first  and  best  authority  on  the  subject.  I  hav^e  used  its  con- 
clusions without  hesitation.  Before  his  death  Judge  Jameson 
conveyed  his  library  to  me,  which,  with  my  own  collection  of 
Conventions,  Debates,  and  Proceedings,  has  enabled  me  to  con- 
sult most  of  the  material  on  the  subject  in  existence. 

116 


High  Individuality  of  the  Virginia  Convention 

authority  delegated  to  such  a  body.  However, 
this  second  constitution,  made  in  the  council 
chamber,  continued  in  force  until  1790,  when  a 
convention  assembled  at  Columbia  on  the  3d 
of  June  and  promulgated  a  constitution,  which, 
several  times  amended,  continued  in  force  until 
1865. 

The  next  State  to  act  was  Virginia,  which,  in 
April,  1776,  elected  forty-five  delegates  to  a  pro- 
vincial  convention.*     They  met  at  Williamsburg 


*  The  Proceedings  of  the  Convention  of  Delegates  held  at  the 
Capitol,  in  the  City  of  Williamsburg,  in  the  Colony  of  Virginia, 
on  Monday,  the  6th  May,  1776.  (Reprint)  Richmond,  1816; 
86  pp. ;  Ordinances,  19  pp.  See  also  The  Virginia  Convention  of 
1776,  Grigsby,  Richmond,  1855.  No  other  convention  assembled 
to  make  a  State  constitution  has  enrolled  so  many  eminent  men. 
Of  the  one  hundred  and  twenty -three  members,  Jefferson  was 
soon  to  write  the  Declaration  of  Independence,  and,  with  him, 
Richard  Henry  Lee,  Benjamin  Harrison,  Thomas  Nelson,  and 
Chancellor  Wythe  were  to  be  signers.  Lee,  Harvie,  and  Ban- 
ister were  to  sign  the  Articles  of  Confederation  ;  Patrick  Henry, 
Edmund  Randolph,  John  Blair,  George  Mason,  Chancellor  Wythe, 
Richard  Henry  Lee,  Thomas  Nelson,  and  Madison  were  to  be 
chosen  delegates  to  the  Federal  Convention  ;  Henry,  Nelson,  and 
Lee  refused  to  attend ;  Randolph  and  Mason  refused  to  sign  the 
constitution  ;  Wythe  was  absent  on  the  day  when  it  was  signed; 
Blair  and  Madison  signed  it.  Nineteen  of  the  members  served 
as  delegates  to  the  old  Congress,  and  twenty-one  became  mem- 
bers of  the  national  Congress.  Richard  Henry  Lee  and  Henry 
Tazewell  became  Senators  of  the  United  States ;  Henry,  Jeffer- 
son, Nelson,  Harrison,  Randolph  (Edmund),  and  James  Wood  be- 
came Governors  of  the  State  ;  Jefferson  and  Madison  became 
Presidents  twice ;  both  served  as  Secretary  of  State,  and  Ran- 
dolph as  Attorney  -  General ;  Blair  was  appointed  by  Washing- 
ton an  Associate  Justice  of  the  Supreme  Court.  Nine  were  subse- 
quently chosen  Presidential  Electors — Henry,  Harvie,  and  Wood, 
in  1789;  Blair,  Wythe,  and  Page,  1801  ;  Read,  Wythe,  and  Page, 
1805  ;  Page  and  Harrison,  1809;  Richard  Henry  Lee,  Harrison,  and 

117 


ConsiHutioiial  Histoiy  of  the  American  People 

on  the  6th  of  the  following  May,  and  on  the  29th  of 
June  promulgated  the  first  constitution  of  the  com- 
monwealth. This  convention,  like  that  of  South 
Carolina  of  1778,  was  a  Revolutionary  gather- 
ing, chosen  to  supplant  the  ancient  House  of 
Burgesses,  and  to  establish  a  government  that 
would  organize  all  the  forces  of  the  State  in  oppo- 
sition to  Great  Britain.  It  was  not  specifically 
empowered  to  make  a  constitution.  The  frame  of 
government  it  adopted  was  destined,  however,  to 
continue  in  force  until  1830.  This  constitution 
is  famed  for  its  bill  of  rights,  drawn  up  by  George 
Mason. 

When  Congress  gave  the  general  advice  to  the 
colonies  to  organize  State  governments,  New 
Jersey  was  already  under  the  control  of  political 
committees  and  a  Provincial  Congress.  On  the 
fourth  Monday  of  May,  1776,  representatives  were 
chosen  throughout  the  State,  to  the  number  of  sixty- 
five,  equally  distributed  among  its  thirteen  coun- 
ties. They  assembled  at  Burlington  on  the  loth  of 
June.*    They  acted  as  a  General  Assembly  rather 


Page,  in  1813.  The  majority  of  the  members  were  conspicuous 
in  the  government  of  Virginia  as  legislators,  judges,  and  county 
officials. 

*  See  its  Journal,  Trenton,  1831.  Withcrspoon,  Hart,  and  Clark 
were  among  the  signers ;  and  Witherspoon  signed  the  Articles  of 
Confederation.  Paterson  signed  the  Constitution  of  the  United 
States.  He  was  nine  times  Governor  of  the  State;  Washington 
appointed  him  an  Associate  Justice  of  the  Supreme  Court.  Eleven 
were  delegates  to  the  old  Congress,  and  twelve  to  the  national. 
Paterson,  Dickenson,  and  Frelinghuysen  became  United  States 
Senators  (1 789-1 799).  Two  became  Presidential  Electors— Dick- 
enson, in  1793,  and  James  Mott,  in  1809. 

118 


Constitutions  Determined  by  Contingencies 

than  a  convention  to  frame  a  new  plan  of  govern- 
ment, but  the  functions  of  both  were  probably  in 
the  mind  of  the  electors  when  they  were  chosen. 
They  exercised  both  functions,  and,  on  the  2d  of 
July,  promulgated  the  first  constitution  of  the 
State.  Their  work,  like  that  of  similar  bodies  in 
New  Hampshire  and  South  Carolina,  was  declared 
to  be  temporary  and  provisional.  If  a  reconcilia- 
tion should  take  place,  this  charter — for  so  the 
Burlington  convention  styled  its  work — should  be 
null  and  void.  Otherwise  it  should  be  "  firm  and 
inviolable." 

The  course  of  the  people  of  Delaware  in  secur- 
ing a  constitution  conformed  with  the  sugges- 
tion of  Congress,  and  with  normal  requirements. 
The  Delaware  House  of  Assembly  in  July,  1776, 
passed  a  resolution  in  accord  with  the  Declara- 
tion of  Independence;  and,  further,  provided  for  a 
special  election,  on  the  19th  of  August,  of  a  con- 
stitutional convention,  to  consist  of  thirty  persons, 
ten  from  each  county  in  the  State.  These  were 
to  assemble  at  Newcastle  on  the  27th  of  the 
month,  "  and  immediately  proceed  to  form  a  gov- 
ernment on  the  authority  of  the  people  of  this 
State."  During  a  session  of  twenty-eight  days 
they  adopted  the  first  constitution  of  Delaware. 
This  was  the  first  constitution  in  the  country 
made  by  the  representatives  of  the  people  chosen 
for  the  express  purpose,  and  the  first  convention 
that  was  normal  in  all  respects.* 

*  The    Delaware    Convention    consisted    of   thirty    members. 

119 


Const  if  lit  ional  History  of  tJje  American  People 

The  Pennsylvania  Assembly  was  superseded  in 
July,  1776,  by  a  provincial  convention  composed 
of  representatives  chosen  from  the  counties  of 
the  province  through  the  instrumentality  of  the 
county  committees.  The  resolution  of  Congress 
of  the  loth  of  May  led  to  the  meeting  at  Carpen- 
ter's Hall,  Philadelphia,  on  the  i8th  of  the  follow- 
ing June,  which  was  attended  by  the  leaders  of 
the  Revolutionary  cause  in  the  city  and  the  ad- 
joining counties.  At  this  meeting  it  was  decided 
that  a  provincial  convention  should  be  called  "  for 
the  express  purpose  of  forming  a  new  govern- 
ment for  this  province  on  the  authority  of  the 
people  only."  But  the  meeting  proceeded  to  fix 
the  requirements  of  those  entitled  to  vote  at  the 
coming  election  of  delegates,  prescribing  the  quali- 
fications which  were  incorporated  in  the  first 
constitution  of  the  State.  A  new  apportionment 
of  representation  was  agreed  upon,  and  the  elec- 
tion was  fixed  for  the  8th  of  July.  A  conven- 
tion assembled  a  week  later  at  Philadelphia,  and 
adjourned  on  the  28th  of  September,  having  pro- 
mulgated the  first  constitution  of  the  common- 
wealth.*    It  assumed  the  functions  of  a  legisla- 

George  Read,  one  of  the  signers  both  of  the  Declaration  of  Inde- 
pendence and  of  the  national  Constitution,  was  president.  Read, 
Van  Dyke,  McKean,  and  Evans,  were  members  of  the  old  Con- 
gress; Van  Dyke,  McKean,  and  Dickinson  signed  the  Articles  of 
Confederation,  Five  became  members  of  the  national  Congress — 
Read  and  Richard  Bassett  as  Senators ;  Bassett  also  signed  the 
national  Constitution,  McKean  became  Chief  Justice  of  Pennsyl- 
vania ;  Sykes,  a  Presidential  Elector  in  1793. 

*  The  Proceedings  of  this  Convention,  and  that  of  1790,  Har- 
risburg,  1825.     It  had  ninety-six  members.     Franklin  was  presi- 

I  20 


A  Commission  Supersedes  the  Government 

tive  body,  choosing  delegates  to  Congress  and 
appointing  a  council  of  safety  with  executive 
powers,  thus  combining  double  functions,  as  did 
the  conventions  of  New  Hampshire  and  South 
Carolina.  Thus  it  was  not  a  constitutional  con- 
vention of  the  normal  type. 

In  North  Carolina,  as  in  South  Carolina  and 
Virginia,  the  movement  to  reorganize  the  colonial 
government  originated  in  a  provincial  convention 
which  had  taken  the  place  of  the  General  Assem- 
bly. This  decision  was  made  at  Halifax  early  in 
April,  1776,  and  the  work  of  preparing  a  constitu- 
tion was  given  to  a  committee,  but  the  committee, 
owing  to  the  shifting  state  of  affairs  in  the  col- 
ony and  of  its  own  opinions,  accomplished  noth- 
ing, and  the  government  of  the  colony  was  placed 
for  a  while  in  a  commission  consisting  of  leading 
patriots.  These  took  the  initiative  in  reorganiz- 
ing the  government  by  calling  an  election  of  dele- 
gates to  a  congress  to  assemble  at  Halifax  on  the 
12th  of  November,  with  power  both  to  legislate 
and  to  frame  a  constitution.     Thus   elected  and 


dent.  Five  of  the  members  were  signers — Franklin,  Clymer, 
Smith,  Wilson,  and  Ross.  Four  signed  the  national  Constitu- 
tion— Franklin,  Mifflin,  Clymer,  and  Wilson.  Four  others,  also, 
were  members  of  the  old  Congress— Matlock,  M'Clean,  Samuel 
and  Thomas  Smith.  Ten  became  members  of  Congress.  Frank- 
lin and  Mifflin  became  Governors  of  the  State.  Wilson  was  ap- 
pointed Associate  Justice  of  the  Supreme  Court  by  Washington, 
and  was  a  Presidential  Elector  in  1789.  His  decision  in  Chisholm 
t/j.  Georgia  (2  Dallas,  419)  ranks  among  the  great  decisions.  It 
is  only  within  recent  years  that  Wilson's  greatness  has  been  dis- 
covered, although  Washington  declared  him  to  be  the  ablest  con- 
stitutional lawyer  in  the  Federal  Convention. 


Constitutional  History  of  the  American  People 

chosen  for  a  particular  purpose,  it  prepared  a 
declaration  of  rights  and  promulgated  a  form  of 
government,  having  first  ratified  it,  "  in  open  Con- 
gress," on  the  1 8th  of  December,  1776.*  Thus 
this  body,  like  the  New  Hampshire  and  New 
Jersey  conventions,  performed  a  double  function. 
The  constitution  which  it  framed  continued  in 
force  until  1835  without  amendment;  as  amended 
then,  and  again  in  1854,  it  continued  in  force 
until  1863. 

As  early  as  January,  1775,  the  Provincial  Con- 
gress of  Georgia  organized ;  and,  in  conformity 
with  the  recommendation  of  the  Continental  Con- 
gress, it  adopted  a  temporary  form  of  government 
on  the  1 5th  of  April,  17  76,  similar  to  that  first  formed 
in  New  Hampshire.  It  continued  until  the  pro- 
mulgation of  the  constitution  of  1777.  The  con- 
vention which  made  this  instrument  consisted  of 
delegates  elected  in  the  parishes  and  districts  of 
the  State,  from  the  ist  to  the  loth  of  September, 
1776.     The  election  had  been  called  by  the  Presi- 


*  The  Journal  of  this  Convention  in  Colonial  Records  of  North 
Carolina,  Vol.  x.,  pp.  913-1013.  It  consisted  of  172  delegates — 
Richard  Caswell,  president :  William  Harper  and  Joseph  Hewes 
were  among  the  signers ;  Cornelius  Harnett  signed  the  Articles 
of  Confederation.  Ten  of  the  members  became  delegates  to  the 
old  Congress,  and  sixteen  to  the  national  ;  Samuel  Ashe  be- 
came Governor  of  the  State.  The  constitution  is  said  to  be  the 
work  of  Thomas  Jones,  Thomas  Burke,  and  Richard  Caswell. 
Charles  Robeson.  John  Carter,  and  John  Haile,  were  from  Wa- 
tauga (Tennessee).  Six  members  had  signed  the  Mecklenburg 
Resolutions  (Wheeler,  Vol.  i.,  p.  85).  Memucan  Hunt  signed  the 
treaty  with  Texas,  April  25,  1838.  Samuel  Ashe  was  a  Presi- 
dential Elector  in  1805  and  1809. 


Conventions  for  Ratification 

dent  of  the  commonwealth  by  proclamation.  The 
chief  purpose  of  the  proclamation  was  to  put  the 
colony  in  a  more  perfect  state  of  military  defence. 
Thus  the  body  which  framed  this  constitution  as- 
sumed the  functions  of  a  Legislature  as  well  as  of 
a  constitutional  convention.  Eleven  years'  ex- 
perience demonstrated  its  defects,  and  when  the 
ratification  of  the  national  Constitution  was  in 
progress  in  the  State,  the  opportunity  was  taken 
to  amend  it.  A  convention,  consisting  of  three 
delegates  from  each  county,  assembled  at  Augusta 
on  the  24th  of  November,  1788,  and  undertook  to 
amend  the  State  constitution  and  to  consider  the 
Constitution  of  the  United  States,  which  had  just 
gone  forth  from  Philadelphia.  The  State  consti- 
tution made  by  this  convention  was  itself  sub- 
mitted to  a  second  convention  for  ratification, 
which  met  at  Augusta  on  the  4th  of  January  of 
the  following  year,  and  suggested  changes  in  the 
constitution  which  it  was  called  to  consider;  a 
third  was  summoned  and  met  on  the  4th  of  May, 
1789,  and  two  days  later  ratified  that  known  as 
the  constitution  of  1789.  This  instrument  con- 
tinued in  force  nine  years,  when  another  conven- 
tion assembled  at  Louisville  on  the  8th  of  May, 
and  on  the  30th  promulgated  the  third  constitu- 
tion of  the  State.  It  took  effect  on  the  first  Mon- 
day of  October  of  that  year,  and,  several  times 
amended,  continued  in  force  until  1865. 

In  New  York,  as  in  New  Jersey,  there  was  a 
strong  anti-revolutionary  party,  which  for  a  time 
delayed    the   formation   of    a    State    government. 

123 


Conslihitioiial  History  of  the  American  People 

Delay  was  due  to  the  better  organization  of  the 
opposition  rather  than  to  public  sentiment.  On 
the  31st  of  May,  1776,  the  Congress  of  the  colony, 
the  successor  of  several  congresses  unfriendly  to 
a  change  of  government,  provided  for  the  election 
of  another,  which  should  be  empowered  to  insti- 
tute a  new  government.  On  the  9th  of  July  the 
convention  met  at  White  Plains.*  It  formally 
adopted  the  Declaration  of  Independence,  and  at- 
tempted to  make  a  constitution.  On  the  loth 
the  body  changed  its  title  from  "  Provincial  Con- 
gress of  the  Colony  "  to  "  The  Convention  of  the 
Representatives  of  the  State  of  New  York,"  and 
agreed  that  the  subject  of  a  new  form  of  govern- 
ment should  be  taken  up  on  the  i6th.  When  this 
day  arrived  the  British  had  entered  New  York, 
and  legislative  business  was  so  pressing  that  the 
consideration  of  a  constitution  was  postponed  un- 
til the   I  St  of  August.     All  magistrates  and  civil 


'*  Some  account  of  the  convention  is  given  in  the  appendix  to 
the  Proceedings  and  Debates  of  the  New  York  Convention  of 
1821.  Albany,  1821.  The  ninety-six  delegates  did  not  all  attend 
at  one  time.  Philip  Livingston  and  Lewis  Morris  were  among 
the  signers;  James  Duane  and  William  Duer  signed  the  articles  ; 
Gouverneur  Morris  also  signed  the  articles,  and,  as  a  delegate 
from  Pennsylvania,  the  Constitution  of  the  United  States. 
The  constitution  was  adopted  (substantially  as  John  Jay  wrote 
it)  "on  the  evening  of  Sunday,  the  20th  of  April."  Sixteen  of 
the  members  became  delegates  to  the  old  Congress ;  and  to  the 
national  Congress,  John  Sloss  Hobart,  and  Gouverneur  Morris, 
of  the  Senate.  Jay  became  the  first  Chief  Justice  of  the  United 
States  and  afterwards  Governor  of  New  York  ;  Taylor  also  be- 
came Governor;  Duane  and  Hobart  became  United  States  Dis- 
trict Judges;  Yates  and  Veeder  were  Presidential  Electors  in 
1793;   Lewis  Morris  and  Ten  Broeck,  in  1797. 

124 


Disturbed  Condition  of  Public  Business 

officers  well  affected  towards  the  cause  of  inde- 
pendence were  urged  meanwhile,  by  resolve  of 
the  convention,  to  continue  the  exercise  of  their 
duties  until  they  should  receive  further  orders. 
The  only  change  made  was  in  the  style  of  judi- 
cial business.  Processes  henceforth  should  issue 
in  the  name  of  the  State  of  New  York.  When 
the  ist  of  August  came,  a  committee  of  thirteen 
was  appointed  to  prepare  and  report  a  constitu- 
tion. To  this  committee  several  eminent  men 
belonged,  among  them  John  Jay,  Gouverneur 
Morris,  R.  R.  Livingston,  and  Robert  Yates.  The 
report  of  the  committee  was  delayed  from  time 
to  time  by  the  condition  of  public  affairs.  Not 
only  was  the  committee  unable  to  perform  its 
duty,  but  the  convention  itself  was  frequently  in- 
terrupted and  compelled  to  change  its  place  of 
meeting.  Thus  at  one  time  it  assembled  at  Har- 
lem ;  at  another  at  Kings  Bridge ;  at  another  at 
Odell,  in  Philip's  Manor;  and  later  at  Fishkill, 
at  White  Plains,  and  at  Kingston.  At  one  of 
these  meetings  only  three  members  were  able  to 
attend.  The  convention,  therefore,  was  a  com- 
mittee of  safety  exercising  legislative  and  admin- 
istrative functions.  On  the  6th  of  March,  1777, 
at  Kingston,  the  committee  formally  appointed  to 
prepare  a  constitutional  form  of  government  was 
directed  to  report  six  days  later,  and  on  that  day 
the  draft  of  a  constitution,  written  by  John  Jay, 
was  read.  It  was  discussed  until  the  20th  of 
April,  when  the  convention,  still  being  in  session 
at  Kingston,  adopted  it  unanimously.      But  the 

125 


Const itiitioiial  Histoiy  of  the  American  People 

form  of  government  adopted,  though  not  sub- 
mitted to  the  people  for  ratification,  met  with 
general  approval.  It  was  amended  in  1801,  and 
continued  in  force  forty-four  years. 

No  State  was  more  peculiarly  situated  during 
the  Revolution  than  Vermont.  Its  territory  was 
claimed  by  Massachusetts,  New  Hampshire,  and 
New  York.  Territorial  disputes  engendered  by 
these  hostile  claims  raged  through  the  period  of 
the  Revolution.  The  State,  meanwhile,  effect- 
ually maintained  its  autonomy  and  independence. 
It  was  among  the  first  to  respond  to  the  recom- 
mendation of  Congress,  and  its  patriot  leaders 
assumed  the  responsibility  of  initiating  a  new 
form  of  government  by  issuing  letters,  which 
served  as  writs  of  election,  to  the  different  towns, 
urging  them  to  choose  delegates  to  assemble  at 
Dorset  on  the  24th  of  July,  1776.*  The  questions 
of  independence  and  of  a  new  government  were 
before  this  convention,  and  were  postponed  until 
January  of  the  following  year,  when  the  con- 
vention  assembled  at  Westminster  and  declared 


*  See  Vermont  Historical  Society  Collection,  Vol.  i.,  and 
Slade's  State  Papers,  passim.  This  convention  had  fifty  mem- 
bers— including  Ira  Allen,  the  historian  of  the  State;  H.  Allen, 
later  member  of  the  national  Congress  ;  Thomas  Chittenden,  later 
Governor  of  the  State:  also,  Matthew  Lyon,  whose  vote  made 
Jefferson  President.  He  was  convicted,  fined  $1060.90,  and  im- 
prisoned, under  the  sedition  law;  but  on  July  4,  1840,  twenty 
years  after  his  death,  Congress  ordered  the  fine  to  be  repaid  to 
his  heirs,  with  interest  from  February,  1790.  This  convention  re- 
assembled at  Dorset,  September  25th,  with  fifty-eight  members — 
among  whom  were  H.  Allen,  Ira  Allen,  Thomas  Chittenden,  and 
Moses  Robinson ;  the  latter  became  Governor  of  the  State  in  1789. 

126 


Pennsylvania  and  the  yermont  Constitution 

Vermont  a  free  and  independent  State.*  On  the 
2d  of  July  of  that  year  it  reassembled  at  Wind- 
sort  and  continued  in  session  six  days,  during 
which  time  it  formulated  the  first  constitution. 
This  was  not  submitted  to  the  people  for  ratifica- 
tion, but,  as  promulgated,  was  approved  by  the 
Legislature  in  1779  and  again  in  1782,  by  which 
act  it  became  the  law  of  the  State.  As  is  well 
known,  it  closely  followed  the  lines  of  the  first 
constitution  of  Pennsylvania,  chiefly  through  the 
efforts  of  Thomas  Young,  a  citizen  of  Philadel- 
phia, who,  on  the  nth  of  April,  1777,  had  pub- 
lished an  address  in  which  he  urged  the  inde- 
pendence of  the  State  and  the  election  of  a  con- 
vention to  form  a  constitution.  The  constitution 
of  Pennsylvania  had  just  been  adopted,  and  was 
suggested  as  a  suitable  model  for  Vermont4 
This  convention  assumed  both  legislative  and  con- 
stitutional functions.  In  1 786,  as  provided  in  the 
constitution,  a  slight  revision  was  made  by  the 
council  of  censors,  an  interval  of  seven  years  hav- 
ing elapsed,  and  the  revised  instrument  was  again 
adopted  by  the   Legislature   and  declared  to  be 

*  Westminster,  October  30,1776;  seventeen  members;  the 
session,  beginning  January  15,  1777,  had  twenty -one  members, 
among  them  Thomas  Chittenden,  H.  Allen,  and  Ira  Allen. 

t  Windsor,  June  4th  ;  seventy-two  members,  including  Thomas 
Chittenden,  Ira  Allen,  H.  Allen,  G.  Olin,  and  Israel  Smith — the 
two  latter  members  of  Congress  under  the  Constitution.  It  reas- 
sembled at  Windsor,  July  2d,  with  twenty-four  members,  among 
them  Thomas  Chittenden. 

X  The  Pennsylvania  sources  of  the  Vermont  Constitution  are 
shown  in  The  Constitution  of  the  State  of  Vermont,  etc.  Brat- 
tleborough,  C.  H.  Davenport  &  Co.,  1891.     pp.  40-44. 

127 


Const il lit ioiial  History  of  the  American  People 

a  law  of  the  State.  In  1793  the  council  caused 
another  revision,  the  convention  which  made  it 
adjourning  on  the  9th  of  July.  This  revision 
was  formally  adopted  by  the  Legislature  on  the 
2d  of  November  and  declared  to  be  the  supreme 
law  of  the  State.  It  was  not  again  altered  in 
the  eighteenth  century,  but  in  the  nineteenth  was 
four  times  amended,  chiefly  in  its  administrative 
provisions.  The  council  of  censors,  which  by  the 
terms  of  the  constitution  of  Vermont  was  em- 
powered to  call  a  convention  once  in  seven  years, 
was  suggested  from  the  constitution  of  Penn- 
sylvania ;  and  the  conventions  which  have  been 
thus  called,  though  more  numerous  than  found 
in  any  other  commonwealth,  have  convened  un- 
der the  authority  of  the  government  of  the 
State. 

The  change  from  colony  to  commonwealth  was 
effected  in  Connecticut  by  act  of  the  General 
Assembly  that  met  on  the  loth  of  October,  1776. 
King  George  had  "  unjustly  levied  war  against  this 
and  the  other  United  States  of  America,"  had  "  de- 
clared them  out  of  his  protection,  and  abdicated 
the  government  of  this  State,"  thus  absolving  its 
people  from  allegiance  to  the  Crown  of  Great  Brit- 
ain. As  the  Representatives  of  the  United  States 
in  General  Congress  assembled  had  declared  that 
"these  United  States  are  and  of  right  ought  to  be 
free  and  independent,"  therefore  all  political  con- 
nection between  the  people  of  Connecticut  and 
Great  Britain  was  totally  dissolved.  The  form  of 
civil  government  continued  as  established  by  the 

12S 


Revolution  by  Act  of  Assembly 

charter  received  from  Charles  the  Second,  so  far 
as  an  adherence  to  the  charter  was  "consistent 
with  an  absolute  independence  of  this  State  of  the 
Crown  of  Great  Britain."  All  officers,  civil  and 
military,  already  appointed  by  the  State,  continued 
in  office,  and  the  laws  of  the  colony  remained  in 
force  until  otherwise  ordered.  The  change  was 
not  formally  ratified  by  the  people,  either  in  con- 
vention or  at  the  town -meetings.  However,  it 
was  supported  by  public  opinion.  In  no  State 
was  the  change  from  colony  to  commonwealth 
made  an  issue  at  the  polls. 

In  Rhode  Island  the  change  was  effected  as  in 
Connecticut.  The  General  Assembly,  on  the  4th 
of  May,  passed  an  act  discharging  the  people  of 
that  colony  from  allegiance  to  the  King.  Some- 
what curiously  the  vote  was  unanimous  in  the 
Upper  House,  but  not  unanimous  in  the  Lower, 
six  of  the  sixty  members  present  voting  in  the 
negative.  It  is  not  improbable  that  more  than 
one -tenth  of  the  electors  in  both  States  disap- 
proved of  the  act  of  separation.  The  change 
from  colony  to  State  was  not  overwhelmingly 
popular  anywhere.  Though  constitutional  forms 
were  followed,  the  change  was  accomplished  by 
the  few  who  were  leaders  of  the  people.  It  was  a 
representative,  not  a  democratic,  act.  Not  until 
the  nineteenth  century  was  well  begun  were  con- 
stitutional changes  submitted  to  the  test  of  popu- 
lar vote,  and  not  until  the  nineteenth  century  was 
half  gone  did  it  become  customary  to  submit  pro- 
posed constitutional  changes,  as  separate  proposi- 
I. — I  129 


Constitutional  History  of  the  American  People 

tions,  for  the   approval   of  the   electors,  either   at 
regular  or  special  elections. 

Though  Massachusetts  was  the  first  colony  to 
apply  to  the  Continental  Congress  for  advice  re- 
specting a  change  in  government,  it  was  the  last 
of  the  original  States  to  adopt  a  constitution.  Its 
constitution  may  be  said  to  have  been  in  progress 
nearly  four  years.  On  the  5th  of  May,  1777,  the 
Massachusetts  Assembly  recommended  that  the 
people  in  their  several  town  elections  should 
choose  representatives  to  the  next  General  Court 
fully  empowered  to  form  a  constitution  of  govern- 
ment for  the  State,  but  this  should  be  submitted 
to  the  electors  for  ratification,  and  unless  approved 
by  two-thirds  of  them  should  be  considered  as  re- 
jected. In  June  a  committee  of  twelve  was  ap- 
pointed to  prepare  a  constitution,  and  it  reported 
in  the  following  January.  The  draft  received  the 
approval  of  the  General  Court  on  the  28th  of  Feb- 
ruary, 1778,  and  was  submitted  to  the  people  on 
the  4th  of  March.  Not  more  than  one  -  fifth  of 
the  electors  voted  for  this  constitution,  and  many 
towns  made  no  return  whatever.  The  chief  ob- 
jection to  the  instrument  was  an  indirect  one — 
that  it  had  not  been  made  by  proper  authority. 
On  the  20th  of  February  of  the  following  year 
the  General  Court,  profiting  by  recent  experience, 
submitted  two  questions  to  the  electors  of  the 
towns — whether  they  desired  a  new  constitution, 
and  whether  they  would  empower  the  members 
of  the  General  Court  to  call  a  convention  for  the 
sole  purpose  of  forming  one.     By  large  majorities 

130 


Adams  Writes  the  Massachusetts  Constitution 

the  people  returned  affirmative  answers,  and  on 
the  17th  of  June  the  General  Court  provided  for 
an  election  of  delegates  to  a  convention  to  meet 
on  the  ist  of  September.  Assembling  in  Boston 
on  that  day,  it  appointed  a  committee  of  thirty  to 
formulate  a  declaration  of  rights  and  a  constitu- 
tion of  government,  and  adjourned  until  the  28th  of 
October,  principally  because  several  towns  in  the 
State  were  not  yet  represented.  The  Committee 
of  Thirty  began  its  w^ork  at  once  and  delegated  to 
John  Adams  the  preparation  of  a  declaration  of 
rights,  and  to  him,  together  with  James  Bowdoin 
and  Samuel  Adams,  the  formation  of  a  draft  of 
a  constitution.  The  subcommittee,  however,  re- 
ferred the  entire  matter  to  Adams,  just  as  the 
committee  on  the  Declaration  of  Independence, 
four  years  before,  had  referred  its  preparation  to 
Jefferson.  Adams  thus  wrote  the  entire  instru- 
ment* On  reassembling,  on  the  28th  of  October, 
the  report  of  the  Committee  of  Thirty  was  ac- 
cepted by  the  convention,  which  proceeded  to  dis- 
cuss the  report.  It  adjourned  on  the  nth  of 
November  until  the  5th  of  January,  1780,  in  order 
that  there  might  be  a  better  attendance.  Not 
until  the  27th  of  the  month  were  there  sufficient 
members  present  to  proceed  to  business.  The 
discussions  continued  until  the  2d  of  March,  when 
the  convention  adjourned  to  the  first  Wednesday 

*  For  John  Adams's  account  of  his  part  in  preparing  the 
Massachusetts  Constitution  of  1780,  see  "Life  and  Works  of 
John  Adams,"  The  Model,  Vol.  i.,  p.  287;  Vol.  iv.,  p.  215-267; 
Vol.  v.,  p.  463. 

131 


Constitutional  Historv  of  the  American  People 

of  June,  having  provided  that  the  opinion  of  the 
people  should  be  taken  on  their  work  in  the  in- 
terval. Reassembled  on  the  7th  of  June,  and  with 
official  evidence  from  tlie  returns  that  the  whole 
constitution  had  been  approved  by  more  than 
two -thirds  of  the  electors,  the  convention  on  the 
1 6th  officially  proclaimed  the  instrument  "  to 
be  the  constitution  of  government  established  by 
and  for  the  inhabitants  of  the  State  of  Massachu- 
setts Bay";  and  further  declared  that  the  new 
constitution  thus  formed  contained  all  the  princi- 
ples of  representative  government  in  America. 
Its  excellence  has  been  attested  by  its  continua- 
tion in  force  until  the  present  time.*  Though 
amended  thirty -four  times,  the  changes  have  not 
affected  the  principles  on  which  the  plan  rests, 
but  are  chiefly  administrative  in  character.! 

*  See  Journal,  Boston,  1832;  also  Convention  of  1820,  Jour- 
nal, pp.  vi.-vii. 

t  The  convention  had  320  members.  Of  these  John  Adams, 
Samuel  Adanrs,  John  Hancock,  and  Robert  Treat  Paine  were 
signers;  John  Hancock,  Samuel  Adams,  and  Samuel  Holton 
signed  the  Articles  of  Confederation ;  Gorham  signed  the  Con- 
stitution of  the  United  States.  John  Hancock,  Samuel  Adams, 
Increase  Sumner,  James  Sullivan,  Caleb  Strong,  and  Levi  Lin- 
coln became  Governors  of  the  State — Strong  and  Lincoln  each 
twice.  William  Cushing  declined  the  office  of  Chief  Justice  of 
the  United  States,  and  Levi  Lincoln  that  of  Associate  Justice. 
John  Lowell  became  United  States  District  Judge.  Theophilus 
Parsons  was  for  a  short  time  Attorney-General  of  the  United 
States  under  John  Adams.  Ten  of  the  members  became  dele- 
gates to  the  old  Congress  and  twelve  to  the  national — of  these 
George  Cabot,  Benjamin  Goodhue,  and  Caleb  Strong  were  Sena- 
tors (i 789-1803).  Seventeen  of  the  members  became  Presidential 
Electors  (i  789-1 821). 


CHAPTER   V 

THE  CONSTITUTIONAL    ELEMENTS 

When  the  territory  south  of  the  Ohio  was  or- 
ganized by  act  of  Congress  on  the  26th  of  May, 
1 790,  the  people  of  Kentucky  were  already  asking 
for  admission  to  the  Union.  As  early  as  1784 
they  had  sought  separation  from  Virginia,  had 
met  twice  in  convention  at  Danville,  and  formu- 
lated petitions  to  the  Virginia  Legislature  asking 
for  separation.  A  third  convention  unanimously 
voted  independence.  The  cession  of  western 
lands  by  Virginia  solved  the  problem  of  the  in- 
dependence of  Kentucky,  and  removed  the  last 
obstacle  in  the  way  of  the  organization  of  a  State 
government.  On  the  ist  of  June,  1792,  the  State 
was  received  into  the  Union  "as  a  new  and  entire 
member  of  the  United  States  of  America."  An- 
other convention  had  assembled  at  Danville  on 
the  2d  of  April,  1792,  and  in  seventeen  days  had 
made  a  constitution.*      It  was   not  submitted  to 


*  The  Kentucky  convention  of  1792  had  forty-five  members. 
George  Nicholas  is  said  to  have  been  the  principal  author  of  the 
constitution.  He,  John  Campbell,  and  Matthew  Walton  became 
members  of  Congress.  Isaac  Shelby  became  the  first  Governor 
of  the  State.  The  vote  on  the  pro-slavery  clause  in  the  consti- 
tution stood  twenty-six  for,  sixteen  against.    Among  the  sixteen 

^33 


Constitutional  History  of  the  American  People 

the  people  for  ratification.  The  population  of  the 
State  came  chiefly  from  Virginia,  and  the  new 
constitution  closely  resembled  that  of  the  parent 
State.  It  continued  in  force  seven  years.  Its  de- 
fects were  chiefly  in  the  organization  of  the  legis- 
lative and  judiciary,  and  in  the  provisions  for  the 
apportionment  of  representation.  On  the  2 2d  of 
July,  1799,  a  constitutional  convention  met  at 
Frankford  and  continued  in  session  until  the 
7th  of  August,  at  which  time  it  promulgated  a 
new  constitution,  to  take  effect  on  the  ist  of  Jan- 
uary, 1800.  This  second  constitution  of  the  com- 
monwealth, remedying  the  defects  of  the  first, 
continued  in  force  fifty  years.* 

were  six  ministers — John  Bailey,  Benedict  Swope.  Charles  Kav- 
enaugh,  George  Smith,  James  Crawford,  James  G.  Garrow.  Rob- 
ert Breckinridge  was  a  member  of  this  convention.  Five  served 
as  Presidential  Electors— Benjamin  Logan  (1793),  Shelby  (1797, 
1801,  1805).  Hubbard  Taylor  (1805,  1809,  1813,  1817,  1821,  1825), 
Matthew  Walton  (1809),  Richard  Taylor  (1813,  1817,  1821,  1825). 
For  a  list  of  the  members  of  this  convention  I  am  indebted  to 
Hon.  R.  T.  Durrett,  of  Louisville,  and  to  Mr.  W.  D.  Hixson,  Li- 
brarian, Maysville,  Kentucky. 

*  The  Kentucky  convention  of  1798-99  consisted  of  fifty-seven 
members.  A.  S.  Bullitt  (president),  John  Adair,  Richard  Taylor, 
Thomas  Clay,  Samuel  Taylor,  William  Steele,  and  Caleb  Wallace 
were  members  of  the  convention  of  1792.  William  Logan,  Henry 
Crist,  Thomas  Sandford,  and  John  Rowan  became  members  of 
Congress,  and  John  Adair,  John  Breckinridge,  and  Buckner 
Thruston,  United  States  Senators  (i 801 -11).  Harry  Junes  be- 
came United  States  District  Judge.  Breckinridge,  one  of  JeflFer- 
son's  intimate  friends,  became  Attorney-General  of  the  United 
States  under  him.  Felix  Grundy  became  Chief  Justice  of  the 
State ;  later,  having  removed  to  Tennessee,  member  of  Congress 
(1811-14),  United  States  Senator  (1829-38),  Attorney-General  un- 
der Van  Buren  (1838-40),  and  again  Senator  (1840) — the  year  of 
his  death.     William  Irvine  became  a  Presidential  Elector  in  1805 

134 


The  State  of  Franklin 

At  the  time  when  North  Carolina  ceded  her 
western  lands  to  the  United  States  a  portion  of 
them,  known  as  Washington  County,  was  already 
occupied  and  called  East  Tennessee.  The  North 
Carolina  Assembly  showed  little  disposition  to 
part  with  this  territory,  and  repealed  its  act  of 
cession  in  the  year  in  which  it  was  passed.  Mean- 
while the  people  of  Tennessee  had  assembled  in 
convention  at  Jonesboro  and  attempted  to  organ- 
ize an  independent  State  government.  The  re- 
peal of  the  North  Carolina  act  caused  a  second 
convention  at  Jonesboro,  which  voted  indepen- 
dence and  gave  to  the  State  the  name  Franklin, 
or  Frankland ;  both  titles  being  used.  The  Jones- 
boro convention  assembled  in  December,  1784, 
had  agreed  on  a  constitution,  and  had  submitted 
it  for  popular  approval.  It  provided  that  before 
the  year  closed  the  people  should  choose  a  second 
convention  for  the  sole  purpose  of  ratifying  the 
constitution,  or  amending  it  as  public  opinion 
might  demand.  This  ratifying  convention  met  at 
Greenville  on  the  14th  of  November  of  the  follow- 
ing year.  The  opinions  respecting  the  constitu- 
tion laid  before  the  convention  were  so  various  that 
it  was  found  quite  impossible  to  harmonize  them. 
After  much  debate  a  committee  was  appointed 
to  prepare  and  submit  a  form  of  government.  It 
based  its  work  on  the  constitution  of  South  Caro- 
lina, though   deriving  help  from  other  Southern 

and  1809.  The  list  of  members  was  sent  me  by  Hon.  R.  T. 
Durrett,  Louisville,  and  by  Mr.  W.  D.  Hixson,  Librarian,  Mays- 
ville,  Kentucky. 

135 


Constitutional  History  of  the  American  People 

constitutions.  Thus  its  work  was  in  a  measure 
composite.  The  convention,  organized  as  a  com- 
mittee of  the  whole,  immediately  rejected  the  re- 
port of  the  committee,  whereupon,  with  equal  haste, 
the  constitution  of  North  Carolina  was  read,  ap- 
proved, and  adopted.  To  this  decision  there  was 
strong  dissent,  especially  from  the  members  of 
the  late  committee,  whose  objections  and  those  of 
other  members  of  the  convention  were  formally 
set  forth  in  the  journal.  A  State  government 
was,  however,  organized,  and  official  notice  was 
sent  to  the  Governor  of  North  Carolina,  informing 
him  that  the  inhabitants  of  Franklin  had  declared 
themselves  a  free  and  independent  State.  The 
rejection  of  the  composite  plan  reported  by  the 
committee  led  to  the  formation  of  a  North  Caro- 
lina party  in  Franklin,  and  for  a  time  great  dis- 
order prevailed.  As  early  as  1785  a  delegate  was 
sent  to  Congress  to  present  to  that  body  a  me- 
morial for  the  admission  of  Franklin  as  a  State 
of  the  Union.  It  was  not  until  1790  that  Con- 
gress accepted  Tennessee  as  a  cession  from  the 
State  of  North  Carolina.  For  nearly  six  years 
Franklin  existed  as  a  quasi  State,  although  it 
was  not  recognized  by  Congress  or  by  the  other 
States. 

The  organization  of  the  territory  south  of  the 
river  Ohio  in  1790  made  it  possible  for  Tennes- 
see, like  Kentucky,  to  proceed  normally  in  its 
course  for  admission,  and  six  years  later,  on  the 
nth  of  January,  a  convention  assembled  at  Knox- 
ville,  continuing  in  session  until  the  6th  of  Feb- 

136 


Eminent  Personages  in  the  Conventions 

uary,  when  it  promulgated  a  constitution.*  This 
was  followed  by  the  admission  of  the  State  on  the 
ist  of  June.  The  constitution  thus  approved  con- 
tinued in  force  until  1834. 

These  conventions  enrolled  many  eminent  men. 
If  the  federal  convention  be  included,  five  men  af- 
terwards Presidents  of  the  United  States  assisted 
in  the  work.  Washington  and  Madison, and  Gerry, 
the  fourth  Vice-President,  belonged  to  the  federal 
convention ;  John  Adams  to  the  Massachusetts 
convention  of  1779.  Jefferson  was  chosen  a  dele- 
gate to  the  Virginia  convention  of  1776,  but  was 
represented  by  an  alternate.  As  the  author  of  the 
Declaration  of  Independence  he  was,  in  a  sense, 
a  member  of  all  the  conventions,  for  it  became  the 
common  bill  of  rights.  Andrew  Jackson  was  a 
member  of  the  Tennessee  convention  of  1796. 
Jay,  Ellsworth,  and  Rutledge  became,  in  turn, 
Chief  Justice  of  the  United  States:  the  first  was 
a  member  of  the  New  York  convention  of  1777,  the 
second  and  third,  of  the  federal  convention.  Seven 

*  See  Journal  of  this  convention,  Knoxville,  1796;  reprint, 
Nashville,  1832.  It  consisted  of  fifty -five  members.  William 
Blount,  the  president,  had  signed  the  Constitution  of  the  United 
States  as  one  of  the  delegates  from  North  Carolina ;  John  Adair 
became  Governor  of  the  State  (1820-24).  Eight  of  the  delegates 
became  members  of  Congress,  and  of  these  four  were  United 
States  Senators — William  Cocke  (1796-97,  1 799-1 805),  Andrew 
Jackson  (1797-98,  1823-25),  William  Blount  (1796-97),  Joseph  An- 
derson (1797-1815).  Tradition  says  that  the  State  was  named 
Tennessee  on  motion  of  Andrew  Jackson.  W.  C.  C.  Claiborne 
was  a  delegate.  The  original  draft  of  the  constitution  is  said  to 
have  been  made  by  Charles  McClung.  See  also  Caldwell's 
Studies  in  the  Constitutional  History  of  Tennessee,  Cincinnati,  1895, 
Chap.  V. 

137 


Constitutional  History  of  the  American  People 

delegates  became  associate  justices  of  the  court. 
Nine  were  cabinet  ministers.  The  members,  in 
the  a2:cTre2:ate,  numbered  about  seventeen  hundred, 
of  whom  upwards  of  three  hundred  served  in  Con- 
gress—  the  greater  part  under  the  Constitution. 
The  State  Les:islatures  enrolled  more  than  Con- 
gress.  Some  became  Governors,  and  a  greater 
number  became  members  of  the  State  judiciary. 
Twenty-seven  were  signers  of  the  Declaration  of 
Independence;  fourteen,  of  the  Articles  of  Con- 
federation ;  and  of  the  thirty-nine  who  signed  the 
Constitution  of  the  United  States,  one-third  were 
members  of  State  conventions.  Witherspoon 
signed  the  Declaration,  the  Articles  of  Confed- 
eration,  and  the  constitution  of  New  Jersey. 
Franklin  and  George  Clymer  were  signers  of 
the  Declaration,  the  Constitution  of  the  United 
States,  and  the  first  constitution  of  Pennsylvania; 
Franklin  was  president  of  the  convention  which 
made  it.  By  a  curious  coincidence,  George  Read 
signed  the  first  constitution  of  Delaware,  as  pres- 
ident of  the  convention,  and,  with  Franklin, the  Dec- 
laration and  the  Constitution  of  the  United  States. 
James  Wilson  was  a  signer  of  the  Declaration,  the 
national  Constitution,  and  the  second  constitution 
of  Pennsylvania.  Gouverneur  Morris  signed  the 
constitution  of  New  York,  the  Articles,  and  the 
Constitution  of  the  United  States.  Roger  Sher- 
man, who  has  the  unique  distinction  of  signing 
our  three  great  state  papers  —  the  Declaration, 
the  Articles,  and  the  Constitution — was  a  mem- 
ber of  Cong^ress  when  the  Connecticut  LeQ:islature 


Our  Revolutionary  Law-givers 

adopted  the  bill  of  rights  of  1776.  Thus  it  ap- 
pears that  no  one  signed  these  great  papers  and 
a  State  constitution  also.  Richard  Henry  Lee 
might  have  stood  in  that  unique  place  in  history. 
He  signed  the  Declaration  of  Independence,  the 
constitution  of  Virginia,  the  Articles  of  Confeder- 
ation, and  was  elected  a  delegate  to  the  federal 
convention,  but  declined  to  serve. 

To  these  men  was  given  the  unparalleled  oppor- 
tunity of  establishing  a  republican  form  of  govern- 
ment in  the  new  world.  When  one  reflects  on 
the  momentous  consequences  of  this  act,  he  may, 
in  some  degree,  measure  the  importance  and  suc- 
cess of  their  labors.  Happy  for  America  that  she 
had  such  men  at  so  critical  a  moment  in  her  his- 
tory. A  hundred  and  fifty  years  of  colonial  ex- 
perience in  the  elements  of  representative  govern- 
ment contributed  to  train  those  whom  posterity 
\v\\\  always  call  The  Fathers.  In  ancient  times 
codes  and  constitutions  were  associated  with  the 
names  of  individuals  —  a  Draco,  a  Lycurgus,  a 
Solon.  Three  Americans  must  henceforth  take 
rank  among  the  law-givers  —  Thomas  Jefferson, 
author  of  the  Declaration  of  Independence;  John 
Jay,  author  of  the  New  York  constitution  of 
1777;  and  John  Adams,  author  of  the  Massa- 
chusetts constitution  of  1780.  Each  derived  some 
help  from  precedents  and  the  suggestions  of  col- 
leagues. If  we  knew  as  much  about  the  genesis 
of  ancient  codes  as  about  that  of  the  American 
constitutions,  Draco,  Lycurgus,  and  Solon  might 
divide   their   honors   with   forgotten    contempora- 

139 


Constitutional  History  of  the  American  People 

ries.  Codes  and  constitutions  are  naturally  com- 
posite in  their  origin.  Other  forces  than  the 
varied  membership  of  a  convention  helped  to 
work  out  these  constitutions.  One  constitution 
influenced  another,  as  Massachusetts  influenced 
New  Hampshire;  Pennsylvania,  Vermont;  Vir- 
ginia, Kentucky;  North  Carolina,  Tennessee — as 
the  fifteen  State  conventions  adopted  before  1787 
influenced  that  of  the  United  States,  and  as  this, 
in  turn,  influenced  all  which  the  commonwealths 
have  since  adopted — nearly  a  hundred  in  number. 
From  1776  to  1800  interstate  influence  was  feeble. 
The  survival  of  what  is  supposed  to  be  the  fittest 
makes  such  instruments  composite,  and  has  al- 
ready transformed  some  into  small  treatises  on 
government. 

All  the  States  had  constitutions.  South  Caro- 
lina, New  Hampshire,  and  Vermont  had  two  each 
before  the  national  Constitution  was  made.  Rhode 
Island  and  Connecticut  had  unwritten  constitu- 
tions, for  they  had  outgrown  their  charters,  though 
nominally  organized  under  them.  The  federal 
convention  made  abundant  use  of  this  mass  of 
precedent.  It  cast  the  supreme  law  of  the  United 
States  into  the  form  prevailing  in  the  common- 
wealths, dividing  the  powers  of  government  into 
legislative,  executive,  and  judicial,  and,  with  few 
exceptions,  making  the  grant  of  power  general. 
State  precedents  were  followed  in  calling  the  na- 
tional Legislature  the  Congress,  with  two  branches, 
styled  the  Senate  and  the  House  of  Representa- 
tives, also  in  calling  the  executive  President,  and 

140 


The  Constitution  Founded  on  State  Laws 

the  courts  supreme  and  inferior.  The  title  Presi- 
dent ran  back  to  the  first  charter  of  Vireinia. 
The  regular  retirement  of  a  portion  of  the  Sen- 
ate, the  provision  for  a  census,  the  right  of  the 
House  to  originate  money  bills,  the  President's 
message,  his  oath  of  office,  his  power  to  veto,  to 
pardon,  to  fill  vacancies,  and  to  command  the  army 
and  navy,  and  the  Presidential  succession  were  all 
suggested  from  the  States.  The  basis  of  repre- 
sentation in  Congress — that  of  the  States  for  the 
Senate  and  districts  for  the  House — had  precedents 
in  the  method  of  choosing  the  two  branches  of  the 
Legislature  in  Virginia  and  Massachusetts.  The 
Vice  -  President  was  a  State  suggestion.  As  we 
have  seen,  the  manner  of  choosing  the  Governors 
varied,  being  direct  in  the  North  and  indirect  in 
the  South.  The  convention,  therefore,  had  a  fair 
field  for  compromise,  and  fell  back  on  special  elec- 
tors. Maryland,  alone  of  all  the  States,  had  an 
Electoral  College,  which  chose  its  State  Senators. 
It  has  been  said  that  this  was  the  model  for  the 
Presidential  Electoral  College.  If  true,  the  con- 
vention failed  to  copy  the  first  quality  of  the  prec- 
edent. Maryland  consists  of  two  parts,  the  east- 
ern and  the  western  shore,  having  little  in  common. 
To  give  them  an  artificial  bond  and  hold  the  com- 
monwealth together  by  stronger  ties,  the  Annapolis 
convention  of  1776  devised  the  choice  of  the  State 
Senate  by  an  Electoral  College.  The  voters  in  each 
county  chose  two  electors  every  fifth  year  to  meet 
at  Annapolis.  Twenty-four  constituted  a  quorum, 
and  were  empowered  to  choose  fifteen  Senators 

141 


Coiislituiional  History  of  the  American  People 

"either  out  of  their  own  body  or  the  people  at  large." 
Had  the  federal  convention  strictly  followed  the 
Maryland  precedent,  Presidential  Electors  would 
vote,  not  by  States,  but  as  an  electoral  convention, 
similar  to  that  which  nominates  the  national  ticket. 
Evidently  the  framers  did  not  aim  at  consolidation 
— the  dominant  idea  in  the  Maryland  precedent. 
It  was  left  to  political  parties  to  make  the  Presi- 
dential Electors  a  unifying  body,  but  in  doing  so 
parties  have  stripped  the  electors  of  discretionary 
power  and  reduced  them  to  a  registering  machine. 
The  Maryland  method  of  choosing  Senators  was 
really  no  precedent,  except  for  the  mere  word — 
"electors."  The  device  adopted  in  1787  for  choos- 
ing the  President  was  original  with  the  convention, 
was  not  founded  on  experience,  and  has  failed  to 
work  as  planned. 

The  clause  for  the  rendition  of  fugitives  from 
justice  was  a  transcript  from  the  New  England 
Confederation  of  1643,  and  conformed  with  colo- 
nial legislation.  Provision  for  the  admission  of 
new  States  was  an  obvious  necessity,  and  followed 
a  specific  clause  on  the  subject  in  the  Ordinance 
of  1787.  To  the  national  judiciary  the  States  con- 
tributed the  life-tenure  and  the  circuit  system, 
though  these  had  long  been  the  practice  in  Eng- 
land. Had  the  commonwealths  made  judicial 
offices  elective,  and  the  occupancy  running  for 
years,  and  abolished  the  circuit  system,  the  na- 
tional Constitution  would  undoubtedly  have  done 
the  same.  The  national  Constitution  profited  by 
the   experience  of  the  commonwealths  in  legisla- 

142 


Analysis  of  the  National  and  State  Constitutions 

tive  procedure ;  in  fixing  the  incompatibility  of 
certain  State  and  federal  offices ;  and,  most  mark- 
ed of  all,  in  soon  responding,  in  the  adoption  of 
the  first  ten  amendments,  to  the  powerful  prece- 
dents of  State  bills  of  rights.  The  original  feat- 
ures of  the  national  Constitution  consist  in  the 
composition  of  provisions  rather  than  in  their 
novelty.  As  it  approached  novelty  it  entered 
debatable  ground.  Organically,  as  well  as  law- 
fully, the  commonwealth  constitutions  are  a  part 
of  the  national,  and  the  latter  is  a  part  of  them. 
It  was  in  a  large  degree  a  generalization  of  ex- 
perience under  the  first  ones,  and  has  strongly 
tended  to  bring  to  a  common  form  all  the  con- 
stitutions proposed  and  adopted  since  1787.  It 
effected  little  of  this  in  the  eighteenth  century. 
The  changes  made  in  State  constitutions  from 
1789  to  1800  were  chiefly  in  recognition  of  the 
existence  of  a  federal  government ;  in  a  few 
clauses  providing  for  the  apportionment  of  repre- 
sentation on  the  basis  of  the  federal  census ;  in 
prescribing  the  qualifications  of  Congressmen ; 
and  in  defining  what  State  and  federal  offices  are 
incompatible.  Not  until  political  parties  were  in 
full  swing  did  the  national  Constitution  enter  upon 
an  administrative  change.  Eventually,  political 
administration  wrought  amendments  which  are 
recorded  in  the  text  of  the  supreme  law  of  the 
Union  and  of  the  several  States.  But  mere  verbal 
changes  only  intimate  this  revision  of  ideas.  The 
unwritten  law  itself  has  been  revised.  The  ques- 
tion, What  is  constitutional  ?  is  answered  by  what 

143 


Const  it  lit  ional  History  of  the  Atnerican  People 

practical  politics  may  succeed  in  reading  into  a 
constitution.  There  is  no  standard  dictionary  of 
politics.  Textual  definitions  count  for  little  in 
(government.  The  various  meanins^s  which  now 
for  more  than  a  century  have  been  read  into  the 
national  Constitution  by  successful  political  par- 
ties have  been  crystallized,  for  a  time,  in  the  con- 
stitutions of  the  commonwealths.  The  supreme 
law  of  the  land  thus  becomes  an  inconstant  quan- 
tity. Its  variations  are  made  evident  only  after 
time  has  set  them  in  perspective. 

The  boundaries  of  the  United  States  ao;reed 
upon  in  the  treaty  of  peace  of  1782  remained  un- 
changed, except  in  the  Oregon  country,  for  twenty 
years,  and  to  this  day  constitute  portions  of  the 
boundaries  of  twenty-nine  commonwealths.  Many 
years  passed  before  these  were  surveyed.  During 
these  twenty  years  the  States  ceded  their  western 
lands  to  the  national  government  and  took  their 
present  boundaries.  On  the  13th  of  July  Con- 
gress passed  the  act  familiarly  known  as  the 
Ordinance  of  1787,  by  which  the  cession  north  of 
the  Ohio  was  organized  as  the  Northwest  Terri- 
tory, in  one  district,  divisible  at  the  discretion  of 
Congress.  The  laws  of  inheritance  operated  with- 
out discrimination — the  estates  of  resident  and 
non-resident  proprietors  in  the  Territory  who  died 
intestate  descending  in  equal  parts  to  the  heirs. 
Wills  were  attested  by  three  witnesses,  and  con- 
veyances of  real  estate  by  two.  An  exception 
was  made  in  favor  of  the  French  and  Canadian 
inhabitants  settled  at  Kaskaskia,  St.  Vincents,  and 

144 


Law-making  IVitbout  Legislative  Act  ion 

the  neighboring  villages,  who  professed  to  be  citi- 
zens of  Virginia.  To  them  the  laws  of  Virginia 
applied  respecting  wills  and  deeds.  The  Gover- 
nor was  appointed  by  Congress  for  three  years, 
but  might  be  removed  sooner  by  the  President. 
He  resided  in  the  Territory,  and  owned  within  it 
a  freehold  estate  of  one  thousand  acres  of  land. 
Congress  also  appointed  a  secretary,  commis- 
sioned by  the  President,  for  four  years.  He  was 
required  to  reside  in  the  district  and  own  a  freehold 
estate  in  it  of  five  hundred  acres.  The  court  con- 
sisted of  three  judges,  two  of  whom  might  form 
a  court.  Each  judge  was  a  resident,  possessed 
of  a  freehold  estate  of  five  hundred  acres  in  the 
Territory.  The  court  exercised  a  common -law 
jurisdiction.  The  judges  were  in  commission  dur- 
ing good  behavior.  A  peculiar  provision  in  the 
act  determined  the  early  laws.  The  Governor 
and  the  judges  might  adopt  such  laws  of  the 
original  States,  criminal  and  civil,  as  in  their 
judgment  seemed  best  suited  to  the  circumstances 
of  the  Territory.  They  reported  these  laws  to  Con- 
gress, and,  unless  disapproved,  they  continued  in 
force.*  The  Territorial  Legislature  might  change 
these  laws  later  if  it  saw  fit.  The  Governor  was 
made  commander-in-chief  of  the  militia  of  the 
Territory,  with  power  to  appoint  all  officers  below 

*  Many  of  the  early  laws  of  the  Territory  were  adopted  from 
the  State  codes,  especially  from  Pennsylvania,  New  York,  Mas- 
sachusetts, Virginia,  New  Jersey,  and  Kentucky.  See  Laws  of 
the  Territory  of  the  United  States  Northwest  of  the  Ohio,  Cin- 
cinnati, W.  Maxwell,  mdccxli.,  pp.  225.  ("  Maxwell's  Code.") 
Facsimile  Reprint,  Robert  Clarke  &  Co.,  Cincinnati. 
I.— K  145 


Constiiutional  Hisfory  of  the  American  People 

tlie  rank  of  general  officers ;  these  were  appointed 
and  commissioned  by  Congress.  He  also  ap- 
pointed magistrates  and  civil  officers  in  each 
county  or  township.  It  was  also  made  his  duty  to 
lay  out  the  district,  or  those  portions  of  it  in  which 
Indian  titles  had  been  extinguished,  into  counties 
and  townships,  but  this  provision  was  subject  to 
future  legislative  changes.  As  soon  as  the  Terri- 
tory contained  five  thousand  free  male  inhabitants 
of  full  age.  Representatives  from  the  counties  or 
townships  were  chosen  to  the  General  Assembly, 
one  Representative  for  every  five  hundred  free 
white  males  until  the  number  of  Representatives 
amounted  to  twenty- five,  after  which  the  appor- 
tionment was  regulated  by  the  Legislature.  No 
person  was  eligible  to  the  Assembly  unless  he  had 
been  a  resident  of  the  district  three  years,  and  a 
citizen  of  the  United  States  for  an  equal  time, 
and  possessed  two  hundred  acres  of  land  in  his 
own  right.  In  order  to  be  an  elector  of  a  Repre- 
sentative, every  person  was  required  to  own  fifty 
acres  of  land  in  his  own  right  in  the  district,  to 
have  been  a  citizen  of  one  of  the  States,  and  a 
resident  of  the  district;  or,  having  the  requisite 
property  qualification,  to  have  had  a  two  years' 
residence  in  the  district.  Members  of  the  As- 
sembly were  chosen  for  two  years.  In  case  of  a 
vacancy  by  death  or  removal,  the  Governor  issued 
a  writ  for  a  new  election. 

The  General  Assembly  consisted  of  the  Governor, 
the  Legislative  Council,  and  the  House  of  Repre- 
sentatives.   The  Council  consisted  of  five  members, 

146 


A  Synopsis  of  Limitations 

chosen  for  a  term  of  five  years,  unless  sooner  re- 
moved by  Congress.  Three  of  the  Council  con- 
stituted a  quorum.  The  manner  of  choosing  a 
Council  was  a  survival  from  colonial  times. 
Every  five  years,  as  soon  as  the  Representatives  had 
met  in  regular  session,  it  was  their  duty  to  nomi- 
nate ten  persons,  residents  of  the  Territory,  and 
possessed  of  a  freehold  estate  in  it  of  five  hundred 
acres  each,  and  return  their  names  to  Congress. 
From  the  ten  thus  nominated  Congress  chose  and 
commissioned  five  to  serve  as  Councillors.  In  case 
of  a  vacancy  in  the  Council,  the  House  nominated 
two  persons,  qualified  as  before,  for  each  vacancy, 
returned  their  names  to  Congress,  which  appointed 
and  commissioned  one  of  the  nominees  for  the  re- 
mainder of  the  term. 

The  powers  of  Governor,  Council,  and  House 
were  limited.  The  limit  on  the  powers  of  the  legis- 
lative, chief  in  importance,  as  time  soon  disclosed, 
was  the  celebrated  sixth  article  forbidding  slavery 
and  providing  for  the  return  of  fugitive  slaves. 
But  the  five  articles  were  also  limitations  in  the 
nature  of  a  bill  of  rights.  The  first  secured  relig- 
ious freedom.  The  second  made  secure  the 
habeas  corpus,  proportionate  representation,  the 
course  of  the  common  law,  the  right  to  bail,  the 
right  to  moderate  fines  and  exemption  from  cruel 
and  unusual  punishments,  the  rights  of  property, 
and  the  inviolability  of  private  contracts.  The 
third  article,  which  is  justly  entitled  to  as  great 
fame  as  the  sixth,  made  it  obligatory  upon  the 
Legislature  to  maintain  schools ;  "  religion,  moral- 

147 


Const  it  itiional  History  of  the  American  People 

ity,  and  knowledge  being  necessary  to  good  gov- 
ernment and  the  happiness  of  mankind" — a  provi- 
sion echoing:  the  sentiment  of  the  educational 
clauses  in  the  constitution  of  Massachusetts  of  1780, 
from  which  doubtless  it  was  taken.  The  same 
article  also  made  the  observance  of  good  faith 
towards  the  Indians  obligatory.  Their  lands  and 
property  should  never  be  taken  from  them  without 
their  consent;  their  property  rights  and  liberty 
should  never  be  disturbed  unless  by  just  and  law- 
ful wars  authorized  by  Congress;  and  in  all  their 
dealings  with  the  Indians  the  whites  should  ob- 
serve justice  and  harmony.  It  is  somewhat  curious 
that  one  article  should  contain  provisions,  as  was 
soon  proved,  so  hopelessly  discordant.  The  Terri- 
tory, and  the  States  which  might  be  formed  in  it, 
were  forever  to  remain  "  a  part  of  this  Confederacy 
of  the  United  States  of  America."  Its  inhabitants 
were  to  pay  their  portion  of  the  federal  debt.  The 
Territorial  Legislature,  and  the  Legislatures  of  new 
States  that  might  be  created,  could  never  interfere 
with  the  primary  disposal  of  the  soil  by  the  United 
States.  The  lands  and  property  of  the  United 
States  were  exempted  from  taxation,  and  in  no 
case  could  non-resident  proprietors  be  taxed  high- 
er than  resident — a  provision  destined  to  be  adopted 
in  later  years  in  every  State  constitution  west  of 
Pennsylvania.  The  navigable  rivers  of  the  Terri- 
tory were  declared  to  be  common  highways,  for- 
ever free  to  all  citizens  of  the  United  States.  The 
entire  territory  northwest  of  the  river  Ohio,  by  the 
fifth  article,  was  ultimately  to  be  formed  into  not 


Provisions  for  the  Admission  of  States 

fewer  than  three  nor  more  than  five  States.  Their 
boundaries  were  defined  by  the  article,  a  provision 
of  slight  importance,  as  the}^  were  alterable  by  Con- 
gress. Five  new  States  might  be  formed  out  of 
the  Territory,  and  be  admitted  to  the  Union  when- 
ever Congress  might  decide  that  they  had  suffi- 
cient population.  They  should  be  admitted  on  an 
equal  footing  with  the  original  States  and  form 
permanent  constitutions  and  State  governments. 
One  condition  only  was  prescribed — that  the  con- 
stitution and  government  should  be  republican  in 
form  and  in  conformity  with  the  principles  of  the 
Ordinance,  meaning  especially  the  celebrated  sixth 
article  on  slavery.  If  Congress  deemed  it  expedi- 
ent, a  State  might  be  admitted  with  less  than  the 
prescribed  population.  In  the  following  year,  on 
August  7th,  the  Assembly  of  Virginia  formally 
ratified  the  Ordinance  as  a  "compact  between  the 
original  States  and  the  people  and  States  in  the 
territory  northwest  of  the  Ohio  River." 

The  territory  of  the  United  States  south  of  the 
river  Ohio  was  organized  on  the  26th  of  May,  1 790, 
as  one  district,  for  the  purpose  of  temporary  govern- 
ment. The  act  conferred  upon  the  inhabitants 
all  the  privileges  and  benefits  set  forth  in  the 
Ordinance  of  1787  for  the  government  of  the 
territory  northwest  of  the  river.  There  was,  how- 
ever, one  exception,  of  far-reaching  importance, 
expressed  in  the  act  of  Congress  of  the  2d  of 
April,  by  which  Congress  had  accepted  the  ces- 
sion of  the  claims  of  the  State  of  North  Carolina 
to  the  district  known  as  Tennessee.     The  act  of 

149 


Constitutional  History  of  the  American  People 

acceptance  contained  ten  conditions,  of  which  the 
most  important  provided  that  the  laws  in  force 
and  in  use  in  the  State  of  North  Carolina  at  the 
time  Congress  accepted  the  cession  should  con- 
tinue in  force  within  the  Southwest  Territory  until 
repealed  or  otherwise  altered  by  the  legislative 
authority  of  the  new  Territory.  As  North  Caro- 
lina was  a  slave  State,  and  as  slavery  had  already 
extended  into  the  Southwest  Territory,  by  this  con- 
dition .slavery  was  forever  practically  established 
there.  At  least,  that  portion  of  the  Ordinance  of 
1787  by  which  slavery  was  prohibited  in  the 
Northwest  Territory  could  never  apply  to  the 
territory  southwest  of  Ohio  as  long  as  the  Legis- 
latures of  the  Southwest  Territory  chose  to  enact 
slave  laws.  This  condition,  limiting  the  power  of 
Congress  and  making  it  dependent  upon  the  will 
of  a  Territorial  Legislature,  or  its  successors — the 
Legislatures  of  Kentucky  and  Tennessee — was  the 
first  of  its  kind  in  our  constitutional  history.  It 
made  the  Ohio  River  the  permanent  boundary  line 
between  free  and  slave  soil,  and  was  a  limitation 
which,  during  the  next  sixty  years,  was  continually 
returning  to  vex  Congress.  It  was  a  condition 
which  has  largely  escaped  the  notice  of  historical 
writers.  Writers  and  speakers  have  often  de- 
scribed the  Northwest  Territory  as  having  been 
made  permanently  free  soil  by  the  Ordinance  of 
1787,  and  the  Southwest  Territory  slave  soil  by 
the  Ordinance  of  1790,  omitting  to  explain  that 
slavery  was  established  by  Congress  in  the  South- 
west Territory  as  a  condition  dependent  upon  the 

150 


SHOWING  CIVIL  DIVISIONS 
AND  DISTRIBUTION  OF  POPULATION 


A  Compromise  on  Slavery 

will  of  its  local  legislative  authority.  Slavery- 
southwest  of  the  river  Ohio  was  a  victory  over 
national  sovereignty,  and  the  result  of  surrender 
of  the  powers  of  Congress  to  a  Territorial  Legis- 
lature. However,  its  establishment  was  considered 
just  and  equable.  The  States  which  had  ceded 
the  Southwest  Territory  were  slave-holding  States; 
those  which  ceded  the  Northwest  Territory,  except 
Virginia,  were  free  soil.  By  excluding  slavery 
from  the  Northwest  and  permitting  it  in  the 
Southwest,  it  was  supposed  that  all  political  and 
ethical  equities  would  be  realized,  and  that  the 
progress  of  the  country  would  be  harmonious,  if 
not  homogeneous. 

In  order  to  adapt  the  Ordinance  of  1787  to  the 
Constitution  of  the  United  States,  the  first  Con- 
gress at  its  first  session  re-enacted  and  modified  it 
by  providing  that  the  Governor  and  all  the  other 
ofBcers  of  the  Territory  hitherto  appointed  by  Con- 
gress should  be  nominated  by  the  President  and 
appointed  with  consent  of  the  Senate.  This  act 
was  further  modified  on  the  8th  of  May,  1792,  au- 
thorizing the  Governor  and  judges  of  the  Terri- 
tory northwest  and  in  that  southwest  of  the  river 
Ohio  to  repeal  any  laws  which  they  had  made. 
The  Secretary  of  State  was  instructed  to  provide 
proper  seals  for  all  the  public  offices  in  the  two 
Territories,  and  any  supreme  or  superior  court 
judge  in  them  was  authorized  to  hold  court  in  the 
absence  of  the  other  judges.  Before  the  spring 
of  1800  population  had  flowed  into  the  North- 
west Territory  so  as  to  make  its  subdivision  into 

151 


Coustitiiiiivhil  Hisfoiy  of  the  American  People 

separate  governments  desirable  ;  and  on  the  7th  of 
May  Congress  provided  that  after  the  4th  of  July 
of  that  year  that  part  of  the  Northwest  Territory 
lying  to  the  v^^estward  of  a  line  beginning  on  the 
Ohio  opposite  the  mouth  of  the  Kentucky  River, 
and  a  line  thence  to  Fort  Recovery,  and  thence 
north  until  it  intersected  the  boundary  line  between 
the  United  States  and  Canada,  should  constitute 
the  Territory  of  Indiana.  Its  civil  government 
was  organized  under  the  Ordinance  of  1787.  As 
soon  as  its  Governor  should  receive  satisfactory 
evidence  that  it  was  the  wish  of  the  majority  of 
the  freeholders  to  elect  an  Assembly,  although 
there  might  not  be  five  thousand  free  male  in- 
habitants of  full  age  in  the  Territory,  an  Assembly 
should  be  chosen.  Until  that  number  should  be 
attained,  the  number  of  Representatives  to  the 
Territorial  Assembly  should  not  be  fewer  than 
seven  or  more  than  nine,  and  be  proportioned  by 
the  Governor  according  to  the  number  of  free 
males  of  the  age  of  twenty -one  years  and  more 
which  the  counties  might  respectively  contain. 
Chillicothe  was  made  the  capital  of  the  Territory 
northwest  of  the  river  Ohio,  and  St.  Vincents  of 
the  Indiana  Territory. 

On  the  4th  of  March,  1791,  Vermont  was  re- 
ceived into  the  Union  "  as  a  new  and  entire  mem- 
ber of  the  United  States  of  America,"  the  first 
addition  to  the  original  thirteen.  Kentucky  was 
admitted  on  the  first  day  of  June,  1792,  and  Ten- 
nessee just  four  years  later. 

On  the  7th  of  April,  1798,  the  fifth   Congress, 

152 


struggle  for  the  Mississippi  Territory 

at  its  second  session,  provided  for  the  establish- 
ment of  a  government  in  the  Mississippi  Territory, 
and  also  for  the  amicable  settlement  of  the  limits 
of  the  State  of  Georgia.  The  domain  between 
the  Mississippi  River  and  the  western  boundary 
of  Georgia,  as  it  exists  to-day,  was  claimed  by  that 
State.  Perhaps  no  other  part  of  the  country  had 
been  claimed  by  so  many  nations  and  common- 
wealths. By  the  act  of  the  7th  of  April,  Congress 
inaugurated  a  peaceful  settlement  of  the  dispute  by 
empowering  the  President  to  appoint  three  com- 
missioners to  meet  those  appointed  by  Georgia 
for  the  purpose  of  determining  the  claims  of  the 
United  States  and  of  Georgia  to  the  territory 
lying  west  of  the  river  Chattahooche,  north  of  the 
thirty-first  degree  of  north  latitude — the  old  boun- 
dary between  the  United  States  and  West  Florida 
determined  by  the  treaty  of  1783  with  Great  Brit- 
ain— and  south  of  Tennessee.  The  area  bounded 
on  the  west  by  the  Mississippi,  on  the  north  by  a 
line  to  be  drawn  due  east  from  the  mouth  of  the 
river  Chattahooche,  on  the  east  by  that  river,  and 
on  the  south  by  the  thirty-first  degree  of  north 
latitude,  was  organized  into  one  district  and  called 
the  Mississippi  Territory.  Over  this  district  the 
President  was  authorized  to  establish  a  govern- 
ment  in  all  respects  similar  to  that  northwest  of 
the  Ohio,  excepting  the  article  respecting  slavery, 
and  he  was  further  authorized  to  appoint  all  nec- 
essary officers  for  the  new  Territory.  At  the  dis- 
cretion of  Congress  it  might  later  be  divided  into 
two  districts,  with   separate    governments.      The 

153 


Constitutional  Histoiy  of  tljc  American  People 

establishment  of  this  new  government  in  no  wise 
impaired  the  right  of  the  State  of  Georgia,  or  of 
any  citizen  therein,  to  the  jurisdiction  of  the  soil 
of  Mississippi  Territory.  All  rights  and  privileges 
granted  to  the  people  of  the  territory  of  the 
United  States  northwest  of  the  river  Ohio  by  the 
Ordinance  of  1787  were  to  be  fully  possessed 
and  enjoyed  by  the  people  of  Mississippi.  As 
soon  as  the  new  Territorial  government  was  estab- 
lished no  person  could  bring  any  slave  into  Mis- 
sissippi from  any  place  without  the  limits  of  the 
United  States;  every  person  convicted  of  the 
offence  was  required  to  forfeit  for  each  slave  so 
imported  the  sum  of  three  hundred  dollars,  of 
which  one-  half  was  to  go  to  the  United  States, 
and  the  other  to  the  informer.  Every  slave 
brought  in  should  receive  his  freedom.  A  sup- 
plemental act  was  passed  on  the  loth  of  May, 
1800,  by  which  so  much  of  the  Ordinance  of  1787 
and  of  the  act  of  1789  providing  for  the  govern- 
ment of  the  territory  northwest  of  the  river  Ohio 
as  related  to  the  organization  of  the  General  As- 
sembly and  prescribed  its  powers  took  effect  in 
Mississippi,  but  until  the  number  of  its  free  male 
inhabitants  of  full  age  amounted  to  more  than  five 
thousand  not  more  than  nine  Representatives 
were  returned  to  its  General  Assembly.  By  this 
act  provision  was  first  made  for  the  apportion- 
ment of  representation  in  the  Territory  and  for 
the  election  of  a  General  Assembly.  Provision 
was  also  made  for  the  settlement  of  the  disputed 
boundary  between  Georgia  and  the  United  States 

154 


Extension  of  Territory  by  Exploration 

before  the  fourth  day  of  March,  1803.  These 
organic  acts  somewhat  changed  the  map  of  the 
United  States,  but  the  changes  affected  only  Terri- 
torial and  commonwealth  boundaries. 

Meanwhile  an  important  discovery  had  extend- 
ed our  national  domain.  On  the  29th  of  April, 
1 792,  Robert  Grey,  captain  of  the  ship  Columbia, 
which  had  left  Boston  on  the  30th  of  September 
five  years  before,  entered  the  mouth  of  the  great 
river  which  drains  the  Oregon  country,  and  which 
now  is  known  by  the  name  of  his  ship.  For  nine 
days  he  explored  it,  and  thus  established  the  claim 
of  the  people  of  the  United  States  to  the  vast  area 
drained  by  the  Columbia  and  its  tributaries.  The 
country  formed  no  part  of  the  area  claimed  by 
France  or  Spain,  for  it  constituted  an  entirely  dis- 
tinct basin,  bounded  on  the  French  and  Spanish 
sides  by  highlands,  and  drained  by  rivers  hitherto 
unknown  to  Europeans.  The  law  of  discovery, 
which  gave  to  France,  England,  and  Spain  their 
possessions  in  the  New  World,  gave  the  Oregon 
country  to  the  United  States.  Nearly  a  century 
after  its  discovery  it  became  three  common- 
wealths. 

The  analogy  between  these  Territorial  acts  and 
the  constitutions  of  the  eighteenth  century  is  ob- 
vious. Qualifications  for  electors  and  office-hold- 
ers like  those  in  the  States  were  re-enacted.  Ex- 
cept the  religious  qualification,  all  the  old  ones 
were  retained  in  kind,  and,  nearly,  in  degree. 
Future  Western  States  were  thus  laid,  for  a  time 
at  least,  on  Eastern  foundations.    As  yet  there  was 

155 


Cousfiliifioiial  History  of  the  American  People 

slight  suggestion  of  the  triumphant  democracy. 
The  Ordinance  of  1787  had  the  quaHties  of  a  con- 
stitution in  its  bill  of  rights  and  its  provisions  for 
the  three  departments  of  government.  Its  anti- 
slavery  clause  was  destined  to  affect  every  new 
commonwealth,  and,  after  seventy-eight  years'  trial, 
to  become  a  part  of  the  national  Constitution — hav- 
ing first  become  part  of  seventeen  State  constitu- 
tions. Before  the  century  closed,  the  national  do- 
main was  nearly  equally  divided  between  States 
and  Territories.  As  it  is  a  principle  in  law  that 
everything  capable  of  ownership  must  have  an 
owner,  so  is  it  in  politics  that  every  region  capable 
of  government  must  be  subject  to  civil  authority. 
To  this  last  the  Indian  lands  were  an  exception. 
The  tribes  were  treated  as  hostile  nations.  They 
were  close  neighbors  to  the  settlements.  The 
frontier  was  not  more  than  fifty  miles  from  the 
Ohio,  in  the  Northwest  Territory,  and  about  the 
same  distance  from  the  Savannah  in  the  south. 
Kentucky,  with  Tennessee,  was  an  oasis  of  civili- 
zation in  a  desert  of  savagery.  The  settlements 
in  the  Cumberland  Valley  comprised  Tennessee. 
Fear  of  the  Indians  still  kept  the  whites  penned 
between  the  Atlantic  and  the  Appalachian  high- 
lands. Pontiac  had  conspired  to  accomplish  what 
the  French  had  failed  to  do.  Not  until  Wayne's 
victory  and  the  treaty  at  Fort  Greenville,  in  1795, 
did  Indian  hostilities  cease  in  the  Northwest  Ter- 
ritory and  immigration  to  the  West  begin.  With- 
in seven  years  from  the  close  of  his  terrifying 
campaign,  the    population    west   of    Pennsylvania 

156 


The  Indians  Bar  Migrating  Settlers 

was  sufficient  to  organize  the  State  of  Ohio  and 
the  Territory  of  Indiana.  But  no  similar  cam- 
paign was  undertaken  against  the  even  fiercer 
tribes  in  the  Southwest,  and  for  nearly  twenty 
years  longer  they  served  as  an  impassable  barrier 
to  immigration.  The  effect  was  to  turn  the  tides 
of  population  northwestward  and  to  carry  into 
Ohio  and  Indiana  hundreds  of  families  who  other- 
wise would  have  settled  in  Mississippi.  But  pop- 
ulation always  moves  in  the  line  of  least  resist- 
ance. Into  the  Western  country  the  Ohio  River 
was  the  natural  highway.  It  ran  out  of  New 
York,  Pennsylvania,  and  Maryland,  and  lapped 
their  population.  Had  it  not  been  for  the  Choc- 
taws  and  Cherokees,  the  migrating  spirits  of  Ken- 
tucky would  have  turned  southward.  The  south- 
ern part  of  Indiana  Territory  was  quickly  taken 
up  by  settlers  from  Virginia  and  Kentucky.  Into 
northern  Ohio  poured  the  overflow  from  New 
England,  New  York,  and  Pennsylvania;  the  western 
reserve  was  New  Connecticut.  Thus  North  and 
South  met  for  the  first  time  in  Ohio  and  In- 
diana. Thirty  years  after  Wayne's  victory,  when 
Ohio  had  a  population  of  six  hundred  thousand 
souls,  its  General  Assembly  disclosed,  in  the  nativ- 
ity of  its  members,  the  composite  character  of  the 
State.  Of  a  hundred  members,  only  one  was  a 
native  of  Ohio. 

Before  the  century  closed  three  lines  of  migra- 
tion extended  along  the  wilderness  roads  into  the 
West.  The  northern  began  at  Albany  and  ex- 
tended to  Detroit  along  the  forty  -  third  parallel. 

157 


Const H lit ioual  History  of  tbe  American  People 

From  Albany  to  Black  Rock  it  was  a  wagon-road. 
There  it  divided.  Some  immigrants  went  by  boat, 
others  by  wagon,  to  the  Ohio  country.  Gradual- 
ly a  permanent  population  was  established  along 
this  route,  constituting  a  peninsula  of  civilization 
extending  from  New  England  to  the  head  of  Lake 
Erie.  The  central  line  was  older.  It  began  at 
Philadelphia  and  reached  to  Pittsburgh  and  the 
Ohio  River.  It  was  the  artery  that  fed  central 
Ohio  with  some  of  the  best  blood  of  New  Jersey, 
Pennsylvania,  and  Maryland.  The  southern  line 
was  the  Virginian,  which  turned  by  many  divisions 
through  the  valleys  into  the  Southwest  and  across 
the  mountains  into  Kentucky  and  Tennessee. 
Over  it  passed  many  settlers  from  the  Carolinas. 
In  after  times  the  New  York  and  Pennsylvania 
routes  became  transcontinental,  and  to-day  com- 
prise two  vast  railroad  systems  which,  with  their 
connections,  make  the  people  of  all  the  common- 
wealths neiorhbors.  The  Virsfinia  route  has  devel- 
oped  into  the  transportation  system  of  the  South 
Atlantic  seaboard,  with  connections  in  the  Gulf 
States  and  westward  to  California.  The  beginnings 
of  these  three  systems  date  from  the  early  move- 
ments of  population  into  the  West  and  Southwest.* 
As  the  century  drew  to  a  close  it  was  found 
that  a  vast  wave  of  population  had  overspread 
the  settled  area,  moving  the  frontier  westward 
forty -one  miles.     Isolated  settlements  were  made 

*  The  railroads  do  not  coincide  with  the  early  wilderness  roads  ; 
these  led  across  streams  and  over  mountains ;  the  railroads  run  in 
the  valleys,  and  follow  the  banks  of  rivers. 


The  Growth  of  Cities 

fully  fourteen  hundred  miles  from  the  Atlantic — 
at  Prairie  du  Chien,  St.  Louis,  and  Natchez,  on 
the  Spanish  frontier.  In  twenty-five  years  popula- 
tion had  so  increased  that,  evenly  distributed  over 
the  country,  there  would  have  been  seventeen 
persons  to  the  square  mile.  Syracuse,  Roches- 
ter, Buffalo,  Cleveland,  Pittsburgh,  and  Cincinnati 
were  only  hamlets.  Nine  cities  could  boast,  each, 
more  than  eight  thousand  people.  Of  these 
Charleston  had  eighteen  thousand;  Boston, twenty- 
five  ;  Baltimore,  twenty -six;  Philadelphia,  forty; 
and  New  York,  sixty.  The  commonwealths  were 
agricultural,  and  twenty-nine  people  in  thirty  lived 
in  the  country.  For  this  reason  the  constitutions 
made  slight  provision  for  local  government.  Four 
of  the  large  cities  caused  difficulties  in  the  appor- 
tionment of  representation,  and  were  the  subject 
of  special  constitutional  provisions.*  Otherwise 
the  States  were  governed  as  rural  communities. 
America  had  not  yet  entered  the  manufacturing 
age.  Public  interests  were  homogeneous,  and, 
largely  for  this  reason,  few  limitations  were  placed 
on  the  powers  of  the  Legislatures.  As  yet  the 
population  was  chiefly  native-born.  About  one- 
fifth  of  it  was  slave,  almost  wholly  in  Southern 
States.    Forming  so  large  a  proportion,  one  might 

*  Constitutions  of  Maryland,  1776,  Art.  vi.,  and  Amendment 
of  1799;  1851,  iii.,  Sees.  2,  3.  Of  South  Carolina,  1776,  xi. ;  1778, 
xii.,  xiii.,  xxiv. ;  1790,  i..  Sees.  3,  7,  and  Amendment  of  1808.  Of 
Pennsylvania,  1776,  Sec.  19;  1790, !.,  Sees.  4,  5,  7  ;  Amendment  of 
1857,  i.,  Sees.  2,4.  Of  New  York,  1777,  iv.,  vii.,  xii.;  Amendment 
of  1801,  iii.,  iv. ;  of  1821,  i..  Sec.  4,  and  Amendment  of  1833  ;  1846, 
iii..  Sees.  3,  5  ;  vi..  Sec.  14 ;  x. ;  of  1894,  iii.,  Sees.  4,  5. 

159 


Constilutioiial  History  of  the  American  People 

expect  to  find  slavery  a  larger  element  in  the  con- 
stitutions of  the  South,  With  the  exception  of 
the  provisions  in  two  States*  requiring  merciful 
treatment  of  slaves  and  regulating  their  emanci- 
pation, the  laws  and  constitutions  of  the  common- 
wealths, North  and  South,  were  almost  alike  in 
excluding  them  from  the  basis  of  apportionment, 
and  also  in  excluding  free  negroes  from  the  fran- 
chise. 

Looking  backward,  we  detect  little  in  the  civil 
institutions  of  the  commonwealths  then  that  pre- 
saged the  America  of  our  own  times.  Individual- 
ism dominated  the  life  of  the  people.  Democracy- 
was  yet  many  years  in  the  future.  The  masses 
were  controlled  by  a  small  party  of  men,  leaders  in 
opinion.  Savagery  lay  close  to  civilization.  There 
were  not  a  hundred  men  of  great  wealth  in  the 
country.  Yet  life  was  clean,  robust,  and,  for  most 
of  the  population,  comfortable  by  their  standard, 
but  meagre,  narrow,  and  colorless  by  ours.  The 
State  was  not  yet  conceived  as  having  those  func- 
tions which  are  now  commonly  called  "duties." 
The  constitutions  of  the  eighteenth  century  lack- 
ed the  features  which  distinguish  those  of  to-day.' 
Fundamental  to  them  all  was  the  idea  that  the 
basis  of  government  is  property.! 

*  Kentucky,  1792,  ix. ;  1799,  vii. ;  Georgia,  1798,  iv.,  Sec.  2. 

t  The  most  complete  record  of  the  debate  on  the  "  Basis  of 
Government — Property  or  Persons?"  is  found  in  the  Journal  of 
Debates  and  Proceedings  in  the  Convention  of  Delegates  Chosen 
to  Revise  the  Constitution  of  Massachusetts,  Begun  and  Holden 
at  Boston,  November  15,  1820,  and  Continued  by  Adjournment 
to  January  9,  1821.     Reported  for  the  Boston  Daily  Advertiser, 

160 


Early  Constitutional  Basis  of  Government 

Boston,  1 82 1,  8vo,  292  pp.  Among  the  delegates  were  Daniel 
Webster,  Joseph  Story,  Levi  Lincoln,  ex-President  John  Adams, 
Josiah  Quincy,  and  Joseph  B.  Varnum.  See  Webster's  speech  on 
the  subject,  a  week  later,  December  1 5,  repeated  and  elaborated  in 
his  "  Plymouth  Oration." 

Proceedings  and  Debates  of  the  Virginia  State  Convention 
of  1829-30.  Richmond,  1830,  8vo,  919  pp.  See,  especially,  the 
speeches  of  Madison  and  Monroe  z'tt  re  "  Property  the  Basis  of 
Government."  Among  the  delegates  were  John  Marshall,  Philip 
P.  Barbour,  Abel  P.  Upshur,  Governor  William  B.  Giles,  William 
P.  Taylor, 


CHAPTER  VI 
THE   FIRST    STRUGGLE   FOR   SOVEREIGNTY 

No  American  constitution  has  defined  sover- 
eignty. Intentionally  or  not,  the  idea  has  been 
left  to  develop  through  administration.  Through- 
out colonial  times  there  raged  a  struggle  between 
Assemblies  and  royal  Governors,  precipitated 
chiefly  by  the  independence  of  the  Governors  and 
the  obligation  imposed  on  the  Assemblies  to 
grant  them  supplies.  Before  a  pacific  compro- 
mise was  worked  out,  American  independence 
made  the  legislative  and  the  executive  alike  re- 
sponsible to  the  electorate.  For  a  time,  while  the 
colonies  were  inchoate  States,  the  executive  was 
almost  in  abeyance.  The  Assemblies  took  the 
initiative  and  organized  new  governments.  Thus 
it  came  to  pass  that  most  of  the  early  constitu- 
tions were  the  work  of  Legislatures.  It  has  already 
been  pointed  out  that  in  these  new  governments 
the  function  of  the  executive  was  military  rather 
than  civil.  The  legislative,  the  Lower  House  in 
particular,  was  the  depositary  of  authority.  The 
States  began  with  a  weak  executive. 

Meanwhile  another  Legislature,  and  ultimately 
another  executive,  were  exercising  a  quasi-conti- 
nental authority.    New-born  enthusiasm  called  the 

162 


Efforts  to  Fonmdate  the  Union 

Congress  of  the  Confederation  into  being,  and  for 
about  eight  years  supported  it.  Its  members  were 
delegates  from  the  States,  chosen  by  their  Legisla- 
tures, and  responsible  to  them  only.  They  were 
subject  to  recall,  and  were  paid  by  vote  of  the 
Legislatures,  if  paid  at  all.  From  the  relation 
thus  established  sprang  the  idea  that  the  Conti- 
nental Congress  was  the  agent  of  the  States.  For 
a  time  it  exercised  authority  as  if  it  were  original; 
and,  under  the  pressure  of  war,  was  sustained  by 
public  opinion.  But  as  the  struggle  became  a 
drain  on  the  resources  of  the  people,  it  was  less 
enthusiastically  supported.  Congress  had  no  popu- 
lar constituency.  It  was  the  creature  of  the  States. 
The  sentiment  of  union  which  had  flickered  for 
more  than  a  century  and  a  quarter  burned  for  a 
time  with  brighter  light  when  the  colonies  de- 
cided to  declare  their  independence. 

On  the  day  when  the  committee  was  appointed 
to  prepare  a  Declaration  of  Independence,  another 
was  named  to  report  Articles  of  Confederation. 
In  twenty- three  days  the  first  committee  com- 
pleted its  work.  It  was  unanimously  adopted 
and  given  to  the  world.  On  the  8th  of  July  the 
second  committee  reported  a  plan  of  union;  it 
was  destined  to  a  different  reception  and  a  far 
different  fate.  For  a  year  Congress  discussed  it, 
in  desultory  fashion,  and  then  sent  it  to  the  Legis- 
latures, before  whom  it  dragged  along,  under  more 
or  less  hostile  discussion,  for  nearly  five  years. 
It  was  not  adopted  by  the  requisite  number  of 
States  until  the  ist  of  March,  1781.     The  Decla- 

163 


Constitutional  History  of  the  American  Teople 

ration  defined  the  States  as  free  and  independent ; 
the  Articles  of  Confederation  declared  that  each 
State  retained  its  sovereignty,  freedom,  and  inde- 
pendence, and  every  power,  jurisdiction,  and  right 
not  expressly  delegated  by  the  Confederation  to 
the  United  States  in  Congress  assembled.  The 
new  government  had  no  popular  constituency.  It 
represented  States.  Meantime  the  power  of  the 
Assemblies  had  not  lessened.  They  rested  on  in- 
dustrial foundations,  they  could  levy  taxes,  they 
could  compel  the  execution  of  their  own  laws. 
Thus  established,  the  States  prospered,  but  the 
Confederation  fell  into  decay.  While  the  Articles 
were  on  the  circuit,  some  States  were  making  their 
first  constitutions ;  and  when  finally  the  Articles 
were  adopted,  Massachusetts,  the  last  State  to 
adopt  a  constitution,  was  assembled  in  convention 
for  the  purpose.  Thus  it  happened  that  one 
clause  in  the  Articles  was  copied,  with  slight 
verbal  change,  into  the  Massachusetts  constitu- 
tion of  1780,  declaring  the  State  "free,  sovereign, 
and  independent,"  and  that  it  could  exercise  every 
power  not  expressly  delegated  to  the  United 
States.  The  next  constitution  to  be  adopted  was 
in  New  Hampshire,  in  1784,  and  it  copied  the 
clause  from  the  Articles,  just  as  Massachusetts 
had  done.  Eight  years  later  it  was  repeated  in 
the  second  New  Hampshire  constitution. 

But  the  word  sovereign  had  been  applied  by  a 
State  before  the  Articles  were  written.  On  the 
loth  of  October,  1776,  the  Connecticut  Assembly, 
by  a  legislative  act,  declared  the  State  "free,  sov- 

164 


state  Sovereignty  in  the  Constitutions 

ereign,  and  independent."  This  act  may  be  said 
to  be  the  parent  of  the  idea  of  State  sovereignty. 
Save  by  these  three  New  England  commonwealths, 
the  word  sovereign  was  not  used  in  a  State  consti- 
tution of  the  eighteenth  century.  When  Connecti- 
cut adopted  a  constitution  in  1818,  the  word  sov- 
ereiofn  was  not  used,  nor  was  State  sovereia^ntv 
claimed.  New  Hampshire  dropped  the  word  and 
the  idea  from  its  constitution  in  1876.  The  Massa- 
chusetts provision  has  never  been  modified,  and  is 
probably  the  only  portion  of  the  Articles  of  Con- 
federation that  survives  in  a  State  constitution. 
Two  years  after  the  adoption  of  the  Articles,  on  the 
3d  of  September,  the  treaty  of  peace  was  signed. 
It  mentioned  the  thirteen  States  severally  by  name, 
called  them  the  United  States,  and  declared  that 
the  King  treated  with  them  as  free,  sovereign,  and 
independent  States. 

Reluctantly,  and  after  necessity  forbade  longer 
delay,  the  Legislatures  of  twelve  States  elected 
delegates  to  the  federal  convention.  Its  proceed- 
ings were  unknown  except  to  its  members,  and 
these  were  pledged  to  secrecy.  Distrust  of  democ- 
racy defeated  every  effort  in  the  convention  to 
have  its  work  submitted  to  popular  vote.  There 
was  even  greater  distrust  of  the  Legislatures.  To 
insure  the  Constitution  fair  treatment,  it  was  re- 
ferred to  special  conventions  chosen  by  the  elec- 
tors. The  word  sovereign  does  not  occur  in  it, 
but  the  idea  is  conveyed  in  those  general  affirm- 
ative passages  vesting  supreme  legislative,  execu- 
tive, and  judicial  authority.     The  question  of  sov- 

165 


Const  it  ittional  H/sto/y  of  tljc  American  People 

ereignty  was  discussed  in  the  convention,  though 
not  at  great  length.  Randolph,  in  opening  the 
business  before  it,  spoke  of  the  jealousy  of  the 
States  with  regard  to  their  sovereignty.*  It  may 
be  inferred,  therefore,  that  the  claim  of  the  three 
New  England  States  to  sovereignty  was  unwrit- 
ten law  in  all  the  other  commonwealths.  At  least, 
no  State  disclaimed  sovereignty.  Johnson,  of 
Connecticut,  described  the  Virginia  plan,  which 
Randolph  proposed  and  which  ultimately  devel- 
oped into  the  Constitution,  as  one  not  destroying 
the  individuality  of  the  States,  but  charged  with 
such  a  tendencv.  Paterson,  the  author  of  the 
New  Jersey  plan,  which  was  a  slight  amendment 
of  the  old  Articles,  defended  it  because  it  would  es- 
tablish a  Confederation.  "  A  Confederation,"  said 
he,t  "supposes  sovereignty  in  the  members  com- 
prising it,  and  sovereignty  supposes  equality ;  if  we 
are  to  be  conceived  as  a  nation,  all  State  distinc- 
tions must  be  abolished."  To  this  Wilson,  of 
Pennsylvania,  replied  :j:  that  a  State  could  as  little 
retain  its  sovereignty,  on  becoming  a  member  of  a 
federal  government,  as  a  man  could  retain  his  equal- 
ity on  becoming  a  member  of  civil  government. 
The  current  of  opinion  in  the  States  was  hinted 
at  by  Lansing,  of  New  York,  who  assured  the  con- 
vention! that  his  State  would  never  have  consented 
to  send  deputies  if  it  had  supposed  that  the  delib- 
erations were  to  turn  on  "  a  consolidation  of  the 
States  and  a  national  government,"  which  he  im- 

*  Elliot,  Vol.  v.,  p.  127.  t  Id.,  p.  176. 

:  /^.,  p.  177.  %Id.,  p.  193. 

166 


Conflicting  Opinions  as  to  State  Sovereignty 

puted  to  be  the  purpose  of  the  Virginia  plan. 
Hamilton,  his  colleague,  admitted  the  sovereignty 
of  the  States,  traced  to  it  their  power  over  the  people, 
and  expressed  his  opinion  that  they  had  shown  a 
disposition  to  regain  the  powers  they  had  delegated 
to  the  Confederation,  rather  than  to  part  with  more 
or  to  give  effect  to  those  already  granted.*  John- 
son, referring  to  this  speech,  said,t  a  little  later, 
that  Hamilton,  alone  of  the  members  of  the  con- 
vention, held  these  opinions.  Hamilton  elaborated 
his  idea,  in  a  prophecy,  as  it  has  proved,  of  the 
character  of  the  national  government  in  our  day, 
saying  that  "  a  complete  sovereignty  should  be  giv- 
en to  the  general  government  such  as  will  turn  all 
the  strong  principles  and  passions  of  men  on  its 
side.":j:  This  led  King,  of  Massachusetts,  to  say§ 
that  the  words  federal,  national,  sovereignty,  and 
States,  had  been  used  inaccurately  in  the  discus- 
sions. The  States  were  not  sovereign  in  the  sense 
contended  for  by  some.  They  did  not  possess  the 
peculiar  features  of  sovereignty;  they  could  not 
make  war,  nor  peace,  nor  alliances,  nor  treaties. 
A  union  of  the  States  was  a  union  of  the  men 
composing  them,  whence  a  national  character  re- 
sulted to  the  whole.  Congress  could  act  alone 
without  the  States,  and  its  acts  would  be  binding 
against  the  instructions  of  the  States.  No  acts 
of  the  States  could  vary  the  situation  or  prevent 
the  judicial  consequences.  If  the  States,  there- 
fore, retained  some  portion  of  their  sovereignty, 

*  Elliot,  Vol.  v.,  p.  20O.  t  J^d.,  p.  220. 

\  Id.,  p.  201.  §  Id.,  p.  212. 

167 


Const  if  lit  ional  History  of  tlje  American  People 

they  had  certainly  divested  themselves  of  essen- 
tial portions  of  it.  If  they  formed  a  confederacy 
in  some  respects,  they  formed  a  nation  in  others. 
Martin,  of  Maryland,  would  not  agree  to  any  dim- 
inution of  the  equal  sovereignty  of  the  States,  and 
insisted  that  the  general  government  to  be  formed 
should  be  only  to  preserve  the  State  governments, 
not  to  govern  individuals.*  He  insisted  that  "  the 
language  of  the  States  being  sovereign  and  inde- 
pendent was  once  familiar  and  understood,  though 
it  seemed  suddenly  to  have  become  strange  and 
obscure."!  This  was  said  after  Elbridge  Gerry, 
of  Massachusetts,  had  asserted  that  the  States 
had  never  been  independent,  and  never  could  be, 
on  the  principles  of  the  Confederation.  "  The 
States,  and  the  advocates  for  them,"  said  he,  "  are 
intoxicated  with  the  idea  of  their  sovereignty."! 
Twenty-five  years  later,  when  Gerry  was  elected 
Vice-President  with  Madison  —  another  triumph 
for  "  the  good  old  republican  doctrine  of  98,"  the 
doctrine  of  the  celebrated  "  Virginia  Resolutions  " 
of  that  year  and  of  "  Madison's  Report "  of  '99 
— he  himself  had  drunk  of  that  spirit  which,  in 
the  convention,  he  said  had  intoxicated  the  States. 
Mutatis  mutandis — Gerry  was  not  alone. 

Ellsw^orth,of  Connecticut,  wished  to  maintain  the 
existence  and  agency  of  the  States,  and  to  ingraft 
the  general  government  upon  them  \\  and  his  idea 
prevailed,  not  so  much  by  express  provision  of  the 
Constitution  as  by  its  actual  working  as  a  political 

=*=  Elliot,  Vol.  v.,  p.  249.  t  Id.,  p.  259. 

\  Id.,  p.  240. 

168 


Restricted  Electorate  in  the  Early  Democracy 

mechanism — as  in  its  method  of  choosing  the 
President,  by  electors  chosen  by  the  States ;  in 
that  of  choosing  Senators,  and  of  apportioning  Rep- 
resentatives by  States.  "  The  equal  vote  in  each 
State,"  wrote  Hamilton  in  The  Federalist*  "  is  at 
once  a  constitutional  recognition  of  the  portion 
of  sovereignty  remaining  in  the  individual  States 
and  an  instrument  for  preserving  that  residuary 
sovereignty " ;  and  with  the  understanding  that 
the  residuary  sovereignty  of  the  States  was  unim- 
paired, the  Constitution  was  ratified  by  a  narrow 
majority. 

Popular  sentiment  in  the  rural  districts  and 
along  the  frontier  was  strong  against  the  plan  ;  in 
the  small  towns  it  was  divided ;  in  the  commercial 
centres  it  was  favorable.  With  only  one  hundred 
and  fifty  thousand  voters  out  of  a  population  of 
three  millions  and  a  half,  the  country  presented 
the  anomalous  spectacle  of  a  democracy  in  which 
the  disqualified  were  in  the  majority,  and  formed 
the  tumultuous  mass  along  the  edge  of  the  elec- 
torate, with  feelings  hostile  to  restrictions  on  in- 
dividual liberty,  or  to  any  form  of  government, 
especially  a  new  one,  that  was  likely  to  multiply 
taxes.  The  right  to  vote  was  exclusively  in  con- 
trol of  the  States.  During  the  twelve  years  since 
the  Declaration  of  Independence  there  had  been  a 
slight  extension  of  the  franchise  here  and  there, 
chiefly  by  act  of  Assembly.     Whatever  reforms 


*  No.  Ixii.     See  also  Mason's  remarks  in  the  convention.    Elliot, 
Vol.  v.,  p.  415. 

169 


Const  if  lit  ional  History  of  the  American  People 

were  desired  in  social  or  commercial  conditions, 
long  habit  pointed  to  the  Assemblies  as  the  source 
of  the  authority,  and  as  the  paramount  democ- 
racy that  could  grant  them.  What,  it  was  asked, 
is  the  new  government  but  the  agent  of  the  States  ? 
Scarcely  was  it  inaugurated  before  the  old  strug- 
gle broke  out  along  new  lines.  The  hated  ex- 
ecutiv^e  of  colonial  times  was  now  become  the 
United  States  government — new,  untried,  its  pow- 
ers undefined.  The  Assemblies  which  opposed  it  of 
old  were  now  the  States — ancient  as  the  Virmnia 
House  of  Burgesses,  experienced,  organized,  their 
powers  unlimited  by  constitutions  or  laws.  This 
ail  meant  a  political  opportunity,  and  it  was  quick- 
ly improved. 

During  the  winter  of  1797,  Jefferson,  then  com- 
pleting his  first  year  in  the  Vice-Presidency,  was 
lodging  at  Francis's  Hotel,  long  famed  as  the 
Indian  Queen,  on  Fourth  Street,  Philadelphia. 
Hither,  after  the  inaugural  ceremonies  in  the  State 
House,  Washington  and  a  throng  of  people  had 
accompanied  Adams  and  Jefferson.  Standing  on 
the  steps  of  this  hotel,  and  struggling  in  vain  to 
control  his  feelings,  Washington  bade  farewell  to 
the  people  he  had  served  so  long  and  so  faithfully. 
The  hotel  was  the  headquarters  of  politicians,  and 
was  much  affected  by  Jefferson's  friends.  Many 
chapters  of  the  political  history  of  the  country  for 
the  next  half- century  were  here  planned.  The 
substance  of  many  conversations  is  recorded  in  a 
letter  by  Jefferson  of  the  12th  of  February,  1798, 
to  John  Wise,  a  Presidential  Elector  from  Virginia 

170 


Jefferson  and  the  Toiy  Party 

in  1793.  In  a  letter  to  Jefferson,  fifteen  days  be- 
fore, Wise  complained  that,  as  he  had  lately  learn- 
ed, Jefferson  had  spoken  of  him  "  as  of  Tory  poli- 
tics," and  he  inquired  "  as  to  the  fact  and  the  idea 
to  be  conveyed."  Jefferson,  "  with  frankness," 
wrote  a  full  reply,  which  may  be  accepted  as  one 
of  the  earliest  authoritative  descriptions  of  political 
parties  under  the  Constitution.  "  It  is  now  under- 
stood," so  runs  this  letter,*  "  that  two  political  sects 
have  arisen  within  the  United  States — the  one 
believing  that  the  executive  is  the  branch  of  our 
government  which  more  needs  support ;  the  other, 
that,  like  the  analogous  branch  in  the  English  gov- 
ernment, it  is  already  too  strong  for  the  republican 
parts  of  the  Constitution;  and  therefore,  in  equiv- 
ocal cases,  they  incline  to  the  legislative  powers : 
the  former  of  these  are  called  Federalists,  sometimes 
Aristocrats  or  Monocrats,  and  sometimes  Tories, 
after  the  corresponding  sect  in  the  English  govern- 
ment of  exactly  the  same  definition  :  the  latter  are 
styled  Republicans,  Whigs,  Jacobins,  Anarchists, 
Disorganizers,  etc. ;  these  terms  are  in  familiar  use 
with  most  persons,  and  which  of  those  of  the  first 
class  I  used  on  the  occasion  alluded  to  I  do  not 
particularly  remember ;  they  are  all  well  understood 
to  persons  who  are  for  strengthening  the  execu- 
tive rather  than  the  legislative  branches  of  our 
government ;  but  probably  I  used  the  last  of  these 
terms,  and  for  these  reasons :  both  parties  claim  to 
be  Federalists  and  Republicans,  and  I  believe,  in 

*  Manuscript  letter. 
171 


Constitutional  History  of  the  American  People 

truth,  as  to  the  great  mass  of  them,  these  appella- 
tions designate  neither  exclusively,  and  all  others 
are  slanders,  except  those  of  Whig  and  Tory,  which 
alone  characterize  the  distinguishing  principles  of 
the  two  sects  as  I  have  before  explained  them,  as 
they  have  been  known  and  named  in  England  for 
more  than  a  century,  and  as  they  are  growing  into 
daily  use  here."  This  reads  as  if  party  principles 
were  already  well  understood,  and  party  organiza- 
tion well  under  way.  But  Jefferson  was  looking 
into  the  future.  Party  material  was  abundant.  It 
needed  shaping  into  coherence  and  efficiency.  All 
was  not  raw  material,  because  Jefferson  had  been 
at  work  upon  it  since  the  day  he  entered  Wash- 
ington's cabinet,  eight  years  before.  Every  impor- 
tant act  of  Washington's  administration,  Jeffer- 
son believed,  consolidated  authority  in  the  federal 
government,  or,  as  he  expressed  it  in  his  letter, 
strengthened  the  executive  at  the  expense  of  the 
legislative — that  is,  the  nation  at  the  expense  of 
the  States.  For  the  nation  stood  the  Federalists 
— the  Tories  ;  for  the  States  the  Republicans — 
Disorganizers,  or,  as  they  soon  came  to  be  called, 
Democrats.  It  was  the  national  party  against  the 
State  party.  With  their  contests  the  administra- 
tion of  the  new  Constitution  began.  The  instru- 
ment was  now  to  be  interpreted.  When  Jefferson 
wrote  this  letter  the  new  government  was  enter- 
ing its  second  decade.  At  its  inception  public 
opinion  had  not  rallied  enthusiastically  about  it, 
and  Washington  had  found  difficulty  in  inducing 
proper  men  to  accept  office.     Had  he  refused  the 

172 


Expanding  the  Principle  of  English  Liberty 

Presidency,  the  national  government  might  have 
failed  for  lack  of  men. 

It  is  difficult  for  us  to-day  to  understand  how 
feebly  the  sense  of  national  responsibility  and  ob- 
ligation rested  on  the  people  of  the  country  at 
the  close  of  the  eighteenth  century.  Indepen- 
dence had  not  been  won,  so  thought  the  masses,  in 
order  to  establish  a  costly,  a  powerful,  a  complex 
national  government,  but  to  secure  to  every  per- 
son in  the  country  his  ancient  and  undoubted 
rights  and  liberties.  Not  satisfied  with  liberty,  a 
few  designing  men,  as  Lansing  had  expressed  it 
in  the  convention,  and  as  many  others  had  re- 
peated it  in  the  ratifying  conventions,  had  devised 
a  consolidated  government,  dangerous  alike  to  the 
States  and  to  individuals.  Were  not  the  bills  of 
rights  and  the  State  constitutions  enough  }  Cer- 
tainly they  were  older  and  of  greater  authority 
than  this  Constitution  lately  made  in  Philadelphia. 
Englishmen  had  long  enjoyed  the  right  of  trial 
by  jury,  the  right  of  petition,  the  right  of  habeas 
corpus,  and  the  right  of  exemption  from  unusual 
fines  and  cruel  punishments.  America  had  added 
to  the  list  the  right  of  freedom  of  speech,  free- 
dom of  worship,  freedom  of  the  press,  exemption 
from  unwarranted  searches  and  seizures,  and  the 
right  of  representation. 

Any  legislation,  or  any  exercise  of  authority  by 
the  national  government  that  could  be  construed 
as  violating  one  of  these  rights,  would  at  once 
precipitate  an  opposition  which,  if  well  managed, 
could  be  organized  as  a  political  party.    The  pop- 

173 


Constitutional  History  of  the  American  People 

ular  interpretation  of  the  Declaration  of  Indepen- 
dence made  it  the  authority  for  exaggerated  ideas 
of  personal  liberty — tending  to  take  the  form  of 
individualism  gone  mad.  At  the  commercial  cen- 
tres this  idea  was  nursed  in  political  attics,  but  in 
the  rural  districts  and  along  the  frontier  it  pos- 
sessed the  streets.  At  the  crest  of  the  Allegha- 
nies  the  West  was  supposed  to  begin,  but  it  lay  as 
far  East  as  Francis's  Hotel.  Central  and  Western 
Pennsylvania,  Virginia  and  the  Carolinas,  Ohio, 
Kentucky,  and  Tennessee  were  the  paradise  of 
individualism.  Law  and  order  were  in  this  vast 
region,  but  not  the  law  and  order  known  in  Bos- 
ton, in  New  York,  in  Philadelphia,  and  in  Charles- 
ton. This  ingenious  and  picturesque  individual- 
ism of  the  West  was  not  crass  ruffianism,  for  it 
possessed  communities  composed  in  large  meas- 
ure of  the  younger  sons  of  the  best  families  of 
the  older  States.  But  in  their  passage  into  the 
Northwest  the  natives  of  New  England,  New 
York,  Pennsylvania,  Maryland,  and  Virginia  suf- 
fered a  political  change  such  as  came  over  the 
younger  sons  of  Virginia  and  the  Carolinas  who 
had  settled  in  Kentucky.  Federalism  was  left 
behind.  The  conditions  of  Western  life  were  not 
a  favoring  soil.  There  the  State,  not  the  nation, 
was  the  chief  political  thought.  The  government 
of  the  United  States  was  far  away.  Had  it  not 
neglected  the  West  ?  More  than  this,  had  it  not 
refused  to  let  the  West  mana2:e  its  own  best  in- 
terests  ?  Had  it  not  interfered,  with  masterly  in- 
competency, in   the  Indian   affairs   of  the   South- 

174 


Antagonism  Between  the  East  and  the  IV est 

west,  and  left  Tennessee  unprotected  against  the 
most  powerful  and  most  brutal  tribes  east  of  the 
Mississippi?  Matters  were  little  better  in  the 
Northwest.  There  the  government  of  the  United 
States  was  commonly  thought  to  be  pursuing  a 
policy  which,  if  not  changed,  would  ruin  or  es- 
trange the  West.  A  frontiersman  put  Federal- 
ists and  Indians  in  the  same  class.  Others  who 
had  given  more  thought  to  the  subject  varied 
the  comparison  by  substituting  the  federal  policy 
for  the  Federalists,  and  contrasting  it  with  that 
of  the  States  —  or  what  would  be  that  of  the 
States  if  not  prevented  by  the  federal  govern- 
ment. By  whatever  path  the  comparison  was  ap- 
proached, it  was  sure  to  bring  Western  travellers 
to  a  point  from  which  the  federal  government 
would  be  viewed  as  the  aggressor.  Opposition 
was  concrete,  as  it  were,  in  the  West;  abstract 
in  the  East.  A  great  field  for  political  opera- 
tion was,  therefore,  awaiting  ownership.  Indians 
and  excises  raised  the  issue  in  the  West.  In 
the  East  it  was  Jay's  treaty  and  Citizen  Genet; 
but,  East  and  West,  the  masterpiece  of  federal  of- 
fence was  the  Alien  and  Sedition  laws.  Opposi- 
tion to  these  proved  the  first  political  cement  that 
held  East  and  West  together. 

When  a  new  party  is  planned  its  projectors 
immediately  search  for  a  foundation  in  legal  de- 
cisions and  political  precedents.  Administrative 
blunders  furnish  campaign  cries,  but  principles, 
and  the  interpretation  of  the  Constitution  by  the 
courts,  furnish  arguments.     Every  party  that  has 

175 


Constitutional  History  of  the  American  People 

arisen  in  America  has  claimed  a  foundation  in 
some  decision  of  the  Supreme  Court. 

While  Jefferson  and  his  poHtical  colleagues  were 
organizing  the  new  party,  a  case  reached  the 
court  involving  the  obscure  question  of  sovereign- 
ty. In  1793  one  Alexander  Chisholm,  a  citizen 
of  South  Carolina,  brought  suit  against  the  State 
of  Georgia.*  John  Jay,  one  of  the  authors  of  The 
Federalist,  was  Chief  Justice.  Wilson,  Blair,  and 
Paterson,  lately  members  of  the  federal  conven- 
tion, and  James  Iredell,  foremost  in  defending  the 
Constitution  in  the  ratifying  convention  of  North 
Carolina,  were  Associate  Justices.  Randolph,  the 
reputed  author  of  the  Virginia  plan,  was  Attorney- 
General  of  the  United  States.  "  I  acknowledge," 
said  he,  in  his  argument  to  the  court,  "  that  the 
States  are  sovereignties";  but  "the  limitations 
which  the  federal  government  is  admitted  to  im- 
pose upon  their  powers  are  diminutions  of  sover- 
eignty." Chisholm's  case  involved  two  questions: 
Could  Georgia  be  sued,  like  an  individual.'^  Did 
the  judicial  power  of  the  United  States  extend 
over  the  case  ? 

Wilson,  in  an  elaborate  opinion,  which  Jay  sup- 
plemented by  another,  gave  the  decision  of  the 
court.  "  As  to  the  purposes  of  the  Union,"  ran 
the  decision,  "  Georgia  is  not  a  sovereign  State." 
Like  an  individual,  it  could  be  sued,  and  the  case 
fell  properly  within  the  judicial  power  of  the 
United   States.      The  Chief  Justice,  after  giving 

*  2  Dallas,  p.  419. 
176 


state  Sovereignty  in  the  Courts 

an  elaborate  review  of  the  political  history  of  the 
country  from  a  time  prior  to  the  Revolution,  con- 
cluded "  that  the  sovereignty  of  the  nation  is  in 
the  people  of  the  nation,  and  the  residuary  sover- 
eignty of  the  State  in  the  people  of  each  State." 
From  these  opinions  Iredell  dissented.  He,  too, 
traced  the  history  of  the  country  from  an  early 
day.  The  States  were  successors  to  the  Crown, 
and  inherited  whatever  sovereignty  it  once  pos- 
sessed in  the  country.  Like  the  King,  they  could 
be  petitioned,  but  not  sued.  After  a  careful  anal- 
ysis of  the  principles  of  the  common  law,  he 
concluded:  "Every  State  in  the  Union,  in  every 
instance  where  its  sovereignty  has  not  been  dele- 
gated to  the  United  States,  I  consider  to  be  as 
completely  sovereign  as  the  United  States  are 
in  respect  to  the  powers  surrendered.  The 
United  States  are  sovereign  as  to  all  the  powers  of 
government  actually  surrendered;  each  State  in  the 
Union  is  sovereign  as  to  all  the  powers  reserved." 
Georgia  could  not  be  sued;  the  United  States 
should  dismiss  the  case  for  want  of  jurisdiction. 

Georgia  accepted  Iredell's  as  the  opinion  of  the 
court.  The  Jeffersonians  welcomed  it  as  the  true 
interpretation  of  the  Constitution.  On  the  day 
following  the  decision,  Sedgwick,  of  Massachu- 
setts, in  the  House,  moved  a  resolution  preliminary 
to  an  amendment  to  the  Constitution  that  should 
carry  out  Iredell's  interpretation  and  protect  the 
States.  Congress  took  no  immediate  action,  but  the 
spirit  of  Sedgwick's  resolution  rapidly  overspread 
the  country.     It  was  welcomed  and  encouraged  by 

I. — M  177 


Constiiutional  History  of  the  American  People 

Jefferson  and  his  friends.  On  the  5th  of  March, 
1794,  Congress  submitted  the  eleventh  amend- 
ment to  the  States,  and  it  was  in  course  of  ratifi- 
cation during  the  next  four  years.  On  the  8th  of 
January,  1798,  just  thirty-four  days  before  Jeffer- 
son wrote  the  letter  to  Wise  defining  political 
parties,  President  Adams  announced  the  adoption 
of  the  amendment.  The  doctrine  of  residuary 
sovereignty  was  made  secure.  The  States  had 
won  a  most  important  victory  at  the  very  begin- 
ning of  their  struggle  with  the  national  govern- 
ment. Iredell's  opinion  became  at  once  the  con- 
stitutional corner-stone  in  the  political  structure 
which  Jefferson  and  thousands  of  his  countrymen 
were  raising.  The  doctrine  of  State  sovereignty 
from  this  time  had  constitutional  standing,  and 
derived  additional  force  from  its  interpreter.  Had 
not  Iredell  been  the  foremost  Federalist  in  North 
Carolina  and  dictated  terms  to  its  ratifying  con- 
vention }  Had  he  not  been  rewarded  by  an  ap- 
pointment to  the  Supreme  Court  .f*  But  when  a 
great  constitutional  question  came  before  them 
he  could  not  support  high  Federalism.  He  was 
an  honorable  man  and  a  supporter  of  republican 
government.  Refusing  to  follow  Jay  and  Wilson 
in  their  abstractions,  by  sound  legal  reasoning  he 
had  dissented  from  them  and  had  saved  the  com- 
monwealths. The  State  party  was,  therefore,  the 
one  true  to  republican  principles.  Let  Federal- 
ists take  warning.  The  liberties  of  the  country 
would  soon  be  in  the  hands  of  patriots. 

Though  Washington's  personal  popularity  suf- 
178 


Distmst  of  Adams's  Administration 

fered  little  during  his  two  terms  as  President,  his 
administration  was  not  popular  with  the  country. 
The  Alien  and  Sedition  laws  dissipated  the  little 
popularity  with  which  Adams's  administration  be- 
gan. He  and  they  had  defenders,  and  among 
them  were  some  of  the  ablest  men  in  the  country. 
But  an  unpopular  law  is  rarely  preserved  by  reason- 
ing and  argument.  The  people  in  Adams's  time 
were  far  more  excitable,  severe  in  criticism,  and 
radical  in  character  than  they  are  to-day.  Social 
efficiency,  economic  association,  nearly  all  the  amel- 
iorating influences  which  distinguish  the  life  of  the 
nation  now  were  lacking  then.  Government  in  a 
democracy  at  the  close  of  a  war  for  independence 
is  likely  to  be  relatively  feeble.  Adams's  whole 
policy  was  pilloried  by  the  opposition  as  a  monarch- 
ical attack  on  the  liberties  of  the  people.  How- 
ever conservative  and  constructive  as  a  national 
policy,  it  was  construed  as  fatal  to  the  rights  of 
man.  It,  therefore,  served  to  unite  the  discon- 
tented, those  whom  Jefferson  styled  the  "  Republi- 
cans, Whigs,  Jacobins,  Anarchists,  Disorganizers." 
These  awaited  the  skilled  hand,  the  masterful 
policy  of  a  genius  for  political  organization;  and 
then — farewell  Adams  and  the  Federalists.  No 
one  understood  this  radical,  destructive,  individu- 
alistic element  better  than  Jefferson.  He  knew, 
probably  better  than  Emerson  did  afterwards,  that 
the  State  was  once  a  private  thought.  On  this 
axiom  he  organized  a  party  destined  to  control 
American  democracy  for  sixty  years  and  to  affect 
its  course  to  the  latest  generation. 

179 


Constitutional  Historv  of  tlv  American  People 

His  plan  was  simple,  effective,  and  popular. 
During  the  Revolution  the  organs  of  public  opin- 
ion were  partly  old,  partly  new.  The  people  had 
been  familiar  with  town  meetings,  county  meet- 
ings, and  Assemblies  for  more  than  a  century  and 
a  half.  The  Revolution  brought  forth  the  com- 
mittees of  correspondence  and  public  safety,  the 
caucus  and  the  convention.  During  the  excite- 
ment over  Jay's  treaty  and  Citizen  Genet  the 
political  mass -meeting  came  in  vogue.  Jeffer- 
son's method  was  cumulative.  He  began  with  in- 
dividuals, and,  judging  from  the  mass  of  his  corre- 
spondence that  remains  (and  he  ranks  among  the 
world's  voluminous  letter-writers),  his  ideas  reached 
every  county  in  the  Union  and  permeated  many 
of  them.  He  chose  to  follow  the  successful 
methods  of  the  Revolution.  A  few  were  admit- 
ted into  his  fullest  confidence.  These  he  met  at 
his  lodgings  in  Philadelphia  and  at  Monticello. 
Among  them  were  Madison  and  Gallatin ;  Levi 
Lincoln,  of  Massachusetts;  Nicholas  and  Breckin- 
ridge, of  Kentucky;  Robert  Smith,  of  Maryland; 
and  Gideon  Granger,  of  Connecticut.  But  his 
lesser  friendships  ran  into  every  city  and  town 
and  among  men  of  all  occupations  and  profes- 
sions. Local  committees  were  organized,  politi- 
cal committees  were  summoned,  and  resolutions, 
carefully  prepared  beforehand,  were  adopted.  A 
favorite  time  for  meeting  in  the  South  was  on 
court  days  at  the  county  seats  when  the  bar  as- 
sembled ;  the  resolutions  could  be  discussed  and 
appropriately  amended,  and   then  be  sent  up  to 

1 80 


The  Tories  Favor  Centralisation  of  Power 

the  Assemblies.  These  must  be  won  at  any  cost. 
Ultimately  all  were  won.  The  State  Legislatures 
secure,  Congress  would  be  compelled  to  respond 
to  State  sentiment.  Ultimately,  would  not  the 
new  party  gain  control  of  the  federal  government 
itself  ? 

Jefferson's  constructive,  unifying  method  had 
been  in  operation  some  nine  years  when  the  Alien 
and  Sedition  acts  brought  public  matters  to  a 
crisis.*  Scarcely  less  odious  to  him  were  other 
federal  measures — the  stamp  tax,  the  house  tax, 
the  naturalization  law,  the  law  increasing  the 
number  of  federal  courts,  and  the  cost  of  the 
army  and  navy.  Did  not  all  these  prove  that 
the  American  Tories  were  of  the  hated  British 
type,  and  were  "bent  on  strengthening  the  exec- 
utive rather  than  the  legislative  branches  of  the 
government?" 

Congress  was  in  session  till  the  i6th  of  July, 
1798,  and  long  before  this  time  Jefferson  and  the 
few  to  whom  he  confided  his  most  critical  meas- 
ures had  perfected  a  plan  of  campaign.  As  each 
federal  measure  passed,  the  alarm  was  sounded 
over  the  country,  and  local  opposition  was  stirred. 
The  Alien  act,  passed  on  the  25th  of  June,  em- 
powered the  President,  at  his  discretion,  to  expel 
from  the  country  any  foreigner  whom  he  judged 
"dangerous  to  the  peace  and  safety  of  the  United 
States,"  or  whom  he  suspected  to  be  "  concerned 


*  For  the  Alien  acts,  see  Statutes  at  Large,  Vol.  i.,  pp.  566,  570, 
577  ;  for  the  Sedition  law,  ni.,  p.  596. 


Constitutional  History  of  the  American  People 

in  any  treasonable  or  secret  machinations  against 
the  government."  Were  not  the  alien  enemies  of 
the  President  and  his  party  the  alien  friends  of 
the  opposition?  Who  determined  citizenship? 
The  States.  What  right  had  the  President,  then, 
to  order  citizens  to  leave  the  country?  The  law 
was  a  palpable  violation  of  the  rights  of  the  States. 

This  was  followed,  nineteen  days  later,  by  the 
Sedition  act,  which,  the  opposition  at  once  said, 
was  levelled  against  them  and  designed  to  per- 
petuate the  power  of  the  Federalists.  If  an 
American  presumed  to  speak  of  either  House  or 
of  the  President  in  a  way  displeasing  to  some 
Federalist,  he  was  liable  to  a  suit  for  libel,  to  a 
fine  of  two  thousand  dollars,  and  to  imprisonment 
for  two  years.  Should  he  meet  with  his  fellow- 
citizens  to  discuss  public  measures,  he  might  be 
indicted  for  conspiracy  against  the  government, 
be  fined  five  thousand  dollars,  and  be  imprisoned 
five  years.  The  truth  might  be  given  in  evidence, 
the  jury  was  judge  of  both  law  and  fact,  and  the 
law  was  to  cease  on  the  3d  of  March,  1801  ;  but 
what  did  these  matters  signify  save  that  the  coun- 
try was  fast  settling  towards  monarchy?  Certain- 
ly a  free  man  had  a  right  to  tell  what  he  thought 
of  the  government.  When  the  States  ratified  the 
Constitution,  had  they  not  with  one  accord  insisted 
on  amendments,  which  were  adopted,  and  of  which 
the  very  first  forbade  Congress  to  pass  any  law 
abridging  the  freedom  of  speech  or  of  the  press  ? 

The  opposition  felt  that  they  were  on  firm 
ground — that  the  federal  acts  were  clearly  uncon- 

182 


The  Coming  of  Clay 

stitutional.  Early  in  August  signs  of  public  sen- 
timent began  to  appear  in  the  newspapers.  In 
the  Kentucky  Gazette,  George  Nicholas,  soon  to 
deliver  a  great  speech  in  Congress  for  the  repeal 
of  the  Sedition  law,  now  published  his  political 
creed  and  an  opinion  pronouncing  the  law  uncon- 
stitutional. At  this  time  he  was  professor  of  law 
in  the  Transylvania  University,  was  known  as  the 
intimate  friend  of  Jefferson,  had  an  extensive  law 
practice  throughout  the  Southwest,  and  possessed 
more  influence  in  Kentucky  than  the  whole 
Federal  party.  Public  meetings  in  Kentucky  and 
Virginia  formulated  similar  sentiments.  Resolu- 
tions,  carefully  planned,  if  not  carefully  drawn, 
were  sent  up  to  the  Legislatures  in  such  number 
as  to  appear  to  be  the  spontaneous  and  unanimous 
sentiment  of  the  people  of  the  two  States.  In 
both,  copies  of  expostulatory  resolutions,  drawn 
from  a  high  source,  had  been  carefully  distributed. 
Faithful  hands  had  copied  them.  Safely  packed, 
with  other  briefs,  in  the  saddle-bags  of  trusted 
partisans,  they  found  their  way  over  the  circuits 
and  were  brought  home  to  every  constituency. 

In  Kentucky  none  were  more  influential  or 
more  active  than  John  Breckinridge  and  George 
Nicholas.  A  young  Virginian,  Henry  Clay,  fresh 
from  the  law  office  of  Chancellor  Wythe,  began  a 
political  career,  lasting  over  a  half  century,  in  a 
speech  at  Lexington  denouncing  the  unpopular 
acts.  On  the  7th  of  November,  Breckinridge  pre- 
sented a  set  of  resolutions  to  the  Kentucky  Legis- 
lature condemning  the  acts.     The  Governor  was 

183 


Cousiitulional  History  of  the  American  People 

outspoken  in  their  favor,  and,  on  the  i6th,  after 
a  week's  debate — which  consisted  of  a  series  of 
professions  of  poHtical  faith  on  the  part  of  the 
members  rather  than  an  argument  against  the 
acts,  the  rcsokitions  passed.*  Jefferson  was  the 
author  of  these  resokitions. 

In  Virsinia  a  similar  set,  written  by  Madison, 
at  Jefferson's  request,  was  presented  to  the  Legis- 
lature by  John  Taylor  on  the  13th  of  December, 
and  adopted  eleven  days  later.t  Verbal,  and 
some  have  claimed  doctrinal,  differences  distin- 
cruish  these  two  manifestoes,  known  as  the  Ken- 
tucky and  Virginia  resolutions  of  '98.  Whatever 
differences  may  have  been  found  in  them  at  a 
later  day,  they  were  originally  intended  to  form  a 
unit  of  political  propagandism,  and  in  that  sense 
were  the  appeal  of  a  new  party  to  the  States  as 
sovereignties. 

The  character  of  the  resolutions  is  easily  under- 
stood. Those  of  Virginia  declared  that  its  As- 
sembly viewed  the  powers  of  the  federal  govern- 
ment, as  resulting  from  the  compact  to  which  the 
States  were  parties,  as  limited  by  the  plain  sense 
and  intention  of  the  Constitution,  as  no  further 
valid  than  authorized  by  the  grants  enumerated  in 
the  compact;  and  that  in  case  of  a  deliberate,  palpa- 
ble, and  dangerous  exercise  of  powers  not  granted, 
the  States,  who  were  the  parties  to  the  compact, 
had  the  right  and  were  in  duty  bound  "  to  interpose 
for  arresting  the  progress  of  the  evil."    The  Assem- 

*  Elliot,  Vol.  iv.,  p.  540.  t  Td.,  p.  528. 

184 


Federal  Sovereignty  Attacked 

bly  complained  that  the  federal  government  mani- 
fested a  spirit  "  to  enlarge  its  powers  by  forced 
constructions  of  the  constitutional  charter  which 
defines  them,"  "  so  as  to  consolidate  the  States 
by  degrees  into  one  sovereignty,  the  obvious  ten- 
dency and  inevitable  consequence  of  which  would 
be  to  transform  the  republican  system  of  the  Unit- 
ed States  into  an  absolute,  or  at  best  a  mixed,  mon- 
archy." The  Kentucky  resolutions  of  '98  set  forth 
the  same  doctrine  of  compact  and  of  limited  pow- 
ers of  the  federal  government,  and  entered  at  length 
into  a  proof  of  the  unconstitutionality  of  the  Alien 
and  Sedition  acts  as  violating  the  express  provi- 
sions of  the  constitutions  and  bills  of  rights.  "  The 
acts,  unconstitutional  and  obnoxious,"  should  be  at 
once  repealed.  In  the  second  Kentucky  resolu- 
tions,* also  written  by  Jefferson  and  concurred  in 
the  22d  of  November,  1799,  the  doctrine  was 
more  clearly  stated :  "  The  States  that  formed 
the  Constitution,  being  sovereign  and  indepen- 
dent, have  the  unquestionable  right  to  judge  of  its 
infraction,"  and  "  a  nullification  by  those  sover- 
eignties of  all  unauthorized  acts  done  under  color 
of  that  instrument  is  the  rightful  remedy."  In 
brief,  the  Kentucky  and  Virginia  resolutions  de- 
nied sovereignty  to  the  federal  government  and 
claimed  it  for  the  commonwealths.  From  this 
claim  of  State  sovereignty  came  the  claim  of  right 
to  nullify  federal  laws,  and,  ultimately,  to  secede 
from  the  Union.     The  idea  of  State  sovereignty 

*  Preston's  Documents,  p.  295. 
■       185 


Constitutional  History  of  the  American  People 

was  now  fairly  launched.  The  Virginia  resolu- 
tions, like  those  of  Kentucky,  pronounced  the  ob- 
noxious laws  unconstitutional.  But  Madison  em- 
phasized the  rights  of  the  States.  His  resolutions 
were  a  protest  against  consolidating  them  by  de- 
grees into  one  sovereignty.  The  federal  Consti- 
tution was  a  compact  expressly  defining  and  limit- 
ing the  powers  of  the  general  government.  The 
States  must  decide  whether  it  had  been  violated 
at  any  time.  Accompanying  the  resolutions  there 
went  an  address  to  the  people  as  the  guardians  of 
State  sovereignty.  Copies  of  the  resolutions  were 
sent  to  the  executives  of  the  other  States,  to  be 
submitted  to  their  Legislatures. 

By  the  ist  of  November  seven  States  had  for- 
mally replied.*  Some  defended  the  Alien  and  Sedi- 
tion laws.  Delaware  thought  the  Virginia  resolu- 
tions an  unjustifiable  interference  with  the  powers 
of  the  general  government.  Massachusetts  and  Ver- 
mont denied  the  right  of  a  State  Legislature  to 
usurp  the  powers  of  the  federal  courts.  Penn- 
sylvania, Maryland,  the  Carolinas,  Georgia,  and 
Tennessee  kept  silence;  but  the  opinions  of  the 
seven  States  grave  no  welcome  to  the  "  doctrine  of 
'98."    So  serious  a  repulse  was  not  expected. 

The  replies  were  referred  to  a  committee  of  the 
House  of  Burgesses,  of  which  Madison  was  chair- 
man, and  he  wrote  a  report  which,  taking  up  the 
original    resolutions    article    by   article,    defended 


*  The  answers  of  the  States  are  given  in  Elliot,  Vol.  iv.,  p.  532, 
etc. 

186 


PowerfiU  Argument  for  State  Sovereignty 

them,  and  at  great  length  analyzed  the  Constitu- 
tion for  the  purpose  of  proving  that  the  resolutions 
were  in  conformity  with  its  express  provisions.* 
Disclaiming  any  intention  of  the  Legislature  to 
diminish  in  any  degree  "  mutual  respect,  confi- 
dence, and  affection  among  the  members  of  the 
Union,"  and  pledging  it  "to  maintain  and  de- 
fend the  Constitution"  and  "  to  support  the  govern- 
ment of  the  United  States  in  all  measures  warrant- 
ed by  their  Constitution,"  Madison  argued  that  the 
federal  government  resulted  from  a  compact  to 
which  the  States  were  parties ;  that  federal  pow- 
ers were  derivative,  not  original ;  that  the  term 
States  signified  the  people  of  the  particular  gov- 
ernments, in  their  highest,  sovereign  capacity,  and 
that  in  that  capacity,  each,  acting  for  itself,  sanc- 
tioned the  Constitution.  Therefore  no  tribunal 
above  their  authority  existed  which  could  decide,  in 
the  last  resort,  whether  the  compact  was  violated. 
With  this  idea  as  a  principle  of  interpretation, 
he  went  through  the  Constitution,  examining  and 
expounding  all  its  phrases  bearing  on  the  sub- 
ject. He  cited  the  history  of  the  country  in  refu- 
tation of  the  idea  of  national  sovereignty.  It  was 
not  granted  by  the  Constitution ;  it  did  not  exist 
by  the  common  law,  because  the  United  States  had 
no  common  law.  The  States,  on  the  other  hand, 
were  a  permanent  and  necessary  element.  They 
could  propose  and  alone  could  ratify  amendments. 
In  the  subdivision  of  a  State  its  Legislature  acted 

*  The  report  is  given  in  Elliot,  Vol.  iv.,  p.  546  et  seq. 
187 


Consfitutional  History  of  the  American  People 

conjointly  with  Congress.  They  remained  as  they 
originated ;  they  were  the  creators  of  the  general 
government.  It  was  their  agent.  Therefore,  the 
Virginia  Lesfislature  adhered  to  its  resolution  and 
continued  its  protest. 

But  in  this  exhaustive  report  Madison  in  no 
way  referred  to  nullification  as  the  ultimate  re- 
source of  a  State.  To  what  extent  it  was  inferen- 
tial would  depend  on  what  measure  of  residuary 
sovereignty  one  might  demand  for  a  State,  and 
what  degree  of  "  palpable  violation  of  the  rights 
of  a  State  "  would  be  suffered.  Nullification,  like 
the  idea  of  sovereignty,  w^as  left  to  be  worked 
out  in  the  practical  administration  of  the  govern- 
ments. 

The  century  was  closing  while  this  interpreta- 
tion of  the  doctrine  of  '98  was  in  progress.  The 
silence  of  Pennsylvania,  and  of  all  the  States  south 
of  it,  save  Delaware,  was  only  negative  testimony. 
But  no  State  sent  out  a  report  on  the  sovereignty 
of  the  United  States.  Many  party  questions  were 
already  involved  in  the  definition  of  sovereignty 
thus  far  made.  National  sovereignty,  if  clearly 
grasped  by  the  leaders,  was  not  thought  of  among 
the  people.  Everywhere  among  the  people  the 
idea  prevailed,  though  more  or  less  cloudy,  that 
the  general  government  was  a  common  agent 
of  the  States.  In  democratic  matters  they  had 
the  right  of  way;  over  foreign  matters  they  had 
ultimate  control.  The  States  were  united ;  the 
general  government  was  thought  of  as  a  political 
compound — not  as  an  organism. 

188 


Sixty  Years  of  Democratic  Rule 

The  doctrine  of '98  won  in  the  election  of  1800. 
The  Democratic  party  was  put  in  possession  of 
the  government.  Instead  of  nineteen  Federalists 
and  thirteen  Democrats  in  the  Senate,  there  were 
now  nineteen  Democrats  and  thirteen  Federalists. 
In  the  House  the  new  party  gained  twenty-three 
members,  and  had  a  majority  of  eighteen.  On  the 
thirty-sixth  ballot  it  chose  Jefferson  as  President. 
Thus  the  man  who  made  the  doctrine  of  State 
sovereignty  a  principle  in  the  creed  of  a  great 
party  was  the  first  to  be  chosen  to  the  Presidency 
by  the  House  of  Representatives  voting  as  States. 
He  wished  the  Kentucky  and  Virginia  resolutions 
added  as  an  amendment  to  the  Constitution,  but 
the  addition  seemed  superfluous.  The  party  that 
believed  in  them  was  in  possession  of  the  govern- 
ment, and,  by  their  interpretation  of  the  Consti- 
tution, would  practically  make  the  resolutions  a 
twelfth  amendment.  Little  did  they  dream  that 
their  lease  of  power  should  run  sixty  years;  that 
during  this  period  there  was  to  be  but  one  Con- 
gress—  the  twenty-sixth  —  in  which  they  should 
not  have  a  majority  in  one  House.  Of  that 
Congress,  their  opponents  should  control  both 
Houses ;  but  John  Tyler  was  then  to  be  Presi- 
dent. Little  did  they  dream  that,  later,  he,  alone 
of  all  the  Presidents,  was  to  put  the  idea  of  State 
sovereignty  to  the  test  by  adhering  to  Virginia 
when  she  seceded,  and  by  becoming  a  member 
of  the  Confederate  House  of  Representatives. 
Whether  State  sovereignty  is  a  true  idea  is  one 
question ;  whether  it  prevailed  in  the  eighteenth 

189 


Coustitiitioual  History  of  the  American  People 

century  is  another.  The  triumph  of  the  doctrine 
of  '98  indicates  the  dominant  political  creed  of 
the  times.  A  new  party  came  in  with  the  new 
century.  The  truth  and  value  of  their  doctrines 
could  be  tested  only  by  administration. 


CHAPTER  VII 

THE    POLITICAL   ESTATE   AT   THE    OPENING   OF 
THE   NINETEENTH    CENTURY 

A  GOVERNMENT  must  be  judged  by  the  condition 
of  the  people  who  support  it.  If  they  are  happy, 
prosperous,  and  contented,  the  mere  form  of  the 
government  is  of  Httle  account.  If  their  opinions, 
aspirations,  and  wants  are  ignored,  a  revolution  is 
at  hand.  Some  form  of  government  will  emerge 
from  the  political  cataclysm,  but  only  to  be  tested, 
like  the  old. 

We  are  prone  to  think  that  the  American  Rev- 
olution— with  accent  on  the  American — righted  all 
political  wrongs,  and  put  the  political  estate  in  trust, 
much  as  we  have  it  to-day.  Was  it  not  a  triumph 
of  the  rights  of  man .''  Did  not  Great  Britain  long 
deny  them  ?  Did  we  not  establish  free  govern- 
ments, with  laws  of  our  own  making  and  law- 
makers of  our  own  choosing?  Indeed,  were  not  the 
days  of  the  fathers  better  than  our  own  ?  He  who 
knows  least  about  the  matter  will  doubtless  answer 
"  Yes  "  to  all  these  queries.  He  who  knows  most 
will  not  regret  that  his  lot  is  cast  at  the  close  of 
the  nineteenth  century  rather  than  in  the  years 
when  the  fathers  are  supposed  to  have  straighten- 
ed out  the  rights  of  man. 

It  is  written  in  the  records  of  New  Hampshire 

191 


Const  it  lit  ional  History  of  tlv  American  People 

how,  on  tlic  4th  of  November,  1775,  its  Provincial 
Congress  adopted  a  resolution  that  delegates  should 
be  chosen  by  the  electors,  and  not  by  the  value 
of  their  estates.*  This  was  revolution.  Who  in 
America  had  ever  presumed  to  participate  in  the 
choice  of  delegates  or  select-men,  or  county  com- 
missioners, w^ithout  first  being  qualified  to  have  an 
opinion  because  he  owned  a  freehold  estate  ?  The 
landless  man  was  the  tramp  of  colonial  times.  He 
was  not  anchored  to  the  State.  Property,  not  men, 
voted.  Fifty  years  before  the  Revolution  the  New 
Hampshire  Assembly  had  refused  to  allow  any 
person  to  vote  who  was  not  a  freeholder,  owning 
land  of  the  value  of  twenty  pounds ;  and  any  per- 
son coming  to  reside  in  a  town  in  the  province, 
unless  he  was  a  freeholder,  or  a  native  of  the  town, 
or  had  served  his  apprenticeship  in  it,  could  not  be 
an  elector  until  he  had  first  obtained  the  consent 
of  the  select-men. t  In  August  of  the  last  year  of 
the  seventeenth  century,  he  who  would  vote  in  New 
Hampshire  was  required  thenceforth  to  own  land 
of  the  value  of  fifty  pounds  sterling.^  Three  years 
before, §  in  the  neighboring  province  of  Massachu- 
setts, he  only  was  permitted  to  vote  who  was  a 
church-member  in  full  communion,  a  householder, 
twenty-four  years  of  age,  with  an  income  yearly  of 


*  Provincial  Papers, Vol.  vii.,  p.  644.  The  principal  authorities 
for  this  chapter  are  the  colonial  laws. 

t  New  Hampshire  Laws.  1726,  p.  120.  Printed  by  B.  Green, 
Boston. 

X  New  Hampshire  Acts  and  Laws,  Portsmouth,  1771,  pp.  3,4. 

§  Massachusetts  Laws,  December,  1686.     Boston,  1814,  p.  42. 

192 


Representation  Regulated  by  Population 

at  least  ten  shillings ;  and  this  had  been  essentially 
the  requirement  since  1631.  Time  did  not  greatly 
ease  the  burden,  for  in  1692  the  freeman  was  re- 
quired to  be  worth  twenty  pounds  in  land.  Three 
years  passed  and  a  rude  attempt  at  apportionment 
was  made.  Every  town  of  forty  freeholders  might 
elect  a  member  of  the  General  Court,  and  a  town 
having  one  hundred  and  twenty  freeholders  might 
send  tw^o.  Towns  having  fewer  than  forty  might 
combine,  each  paying  its  share  of  the  expense  of 
maintaining  a  delegate ;  or  each  town  might  elect 
and  support  its  own.*  At  the  time  of  the  Revolu- 
tion a  town  having  two  hundred  and  twenty  free- 
holders could  send  three  delegates ;  and  one  with 
a  hundred  more,  four.t  The  admission  of  freemen, 
at  least  in  New  England,  was  a  local  matter,  rest- 
ing with  the  towns.  Rhode  Island,  as  early  as  1663, 
adopted  the  rule.lj:  A  century  wrought  a  change 
in  the  method  of  registration.  The  secretary  of 
the  colony  kept  the  roll  of  the  inhabitants,  and  he 
who  ow^ned  real  estate  worth  forty  pounds,  or  that 
rented  for  forty  shillings  a  year,  and  who  had  been 
proposed  as  a  freeman  three  months  before  the 
election,  might  vote.§  Exception  was  made  for  a 
freeman's  eldest  son.  He  voted,  "  being  the  son 
of  his  father."  But  the  lot  of  the  freeman  was  not 
always  a  happy  one.  Connecticut,  whose  election 
laws  were  like  those  of  Rhode  Island,  required,  in 
1 715,  that  the  freeman  possess  a  certificate,  signed 

*  Massachusetts  act,  confirmed  August  22,  1695. 

t  Massachusetts  act  of  November  29,  1775. 

X  March  ist.  §  Act,  1762. 

1.— N  193 


Const  it  111  ional  History  of  the  American  People 

by  the  select-men,  showing  him  to  be  "a person  of 
a  quiet  and  peaceable  behavior  and  of  civil  conver- 
sation."* In  law  at  least,  those  who,  as  the  oath  of 
a  freeman  described  them,  were  "  by  the  Providence 
of  God  inhabitants  within  this  His  Majesty's  Colony 
of  Connecticut,"  and  bore  a  satisfactory  reputation, 
were  entitled  to  vote  according  to  their  conscience, 
"  without  respect  of  persons  or  favor  of  any  man."t 
Strongly  democratic  in  opinion,  the  people  of  New 
Hampshire,  when  the  colony  became  a  State, | 
abolished  the  old  franchise  qualifications,  and, 
with  almost  unparalleled  liberality,  required  of  the 
voter  only  that  he  be  a  taxpayer,  duly  enrolled  in 
a  town.  In  this  respect  New  Hampshire  widely 
departed  from  Massachusetts,  though  freely  adopt- 
ing many  provisions  of  its  constitution.  Provin- 
cial traditions  were  too  strong  in  Massachusetts 
to  trust  the  political  estate  to  any  inhabitants 
who  were  not  owners  of  real  estate  of  the  an- 
nual value  of  three  pounds,  or  of  an  estate  worth 
sixty,  and  who  had  not  resided  for  a  year  in  the 
town  where  they  wished  to  vote.§  It  may  be 
said  that  throughout  colonial  times  an  estate 
worth  less  than  forty  shillings  a  year  did  not 
count  in  politics.  Its  owner  was  excluded  from 
the  list  of  voters. 

Yet  there  were  freemen  and  freemen.     He  who 

*  Acts  and  Laws,  Connecticut,  p.  40.     New  London,  T.  Green, 
!7i5- 

t  Laws  of  Connecticut,  1750,  p.  175. 
+  Act  of  September  11,  1776. 

§  Constitution,  Massachusetts,  Chap,  i.,  Sec.  3,  Art.  iv. 

194 


Assumption  of  the  Responsibilities  of  Citi{ensbip 

lived  in  the  City  of  New  York  in  tlie  middle  of 
the  seventeenth  century  and  was  not  to  the  man- 
ner born,  paid  a  various  price  for  his  political  es- 
tate. If  he  was  a  merchant,  a  trader,  or  a  shop- 
keeper, he  paid  five  pounds;  if  a  tradesman,  twenty 
shillings;  if  he  had  served  his  apprenticeship  in 
the  city,  or  was  native  born,  he  paid  one  pound. 
In  addition,  each  paid  sundry  little  fees,  familiar- 
ly known  as  tips  in  our  day — six  shillings  to  the 
Mayor  and  six  to  the  Recorder;  seven-and-six  to 
the  clerk,  and  ninepence  to  the  bell-ringer  and 
crier,  "for  wild  riot";  and  yet  some  people  in 
New  England  said  New  York  was  a  wicked  town. 
When  the  last  fee  was  paid,  the  enfranchised  one 
made  solemn  oath  to  the  King,  and  swore  obedi- 
ence to  the  Mayor  and  to  the  ministers  of  the 
city  and  to  its  franchises  and  customs,  and  prom- 
ised that  he  would  contribute,  to  the  city,  tallage, 
lot  and  scot  and  taxes,  and  obey  all  summonses 
and  watches,  and  warn  the  Mayor  of  gatherings, 
conventicles,  and  conspiracies ;  and  then  the  oath 
came  to  an  end,  and  the  men  of  fees  disappeared 
and  the  new  freeman  wondered  whether  he  had 
not  sworn  away  even  more  than  he  had,  includ- 
ing his  liberty.*  But  it  was  a  great  privilege  to 
be  a  freeman,  what  with  the  taxes  and  the  con- 
spiracies and  the  lot  and  scot  and  the  fees.  They 
would  not  have  to  be  paid  again.  And  this  was 
about  a  dozen  years  before  the  great  Declaration 

*  Laws,  Statutes,  Ordinances,  etc.,  of  the  City  of  New  York. 
John  Holt,  1763,  p.  23. 

195 


Constitutional  History  of  tljc  American  People 

and  "  life,  liberty,  and  the  pursuit  of  happiness." 
Just  sixteen  years  after  these  things,  and  when 
the  State  of  New  York  was  a  year  old,  there  was 
a  reform.  Henceforth  every  man  in  possession  of 
land  in  right  of  his  wife  might  vote — though  she 
could  not.  And  if  he  would  vote  for  Senator  or 
Assemblyman,  he  must  vote  in  his  own  district, 
and  viva  voce,  but  by  ballot  if  he  voted  for  Gov- 
ernor or  Lieutenant-Governor.*  With  what  pride 
he  "abjured  the  Crown"  in  the  new  oath,  and 
swore  allegiance  to  "  the  free  and  independent 
State  "  of  New  York.t  Was  not  this  ample  com- 
pensation for  additional  taxes  ? 

Before  the  century  closed  New  York  was  di- 
vided into  four  great  districts,^  and  Senate  and 
House  were  all  nicely  apportioned  and  all  the 
new  counties  in  the  western  part  of  the  State 
were  clamoring  for  a  reapportionment.  But  the 
four  divisions  —  Southern,  Middle,  Eastern,  and 
Western  —  were  the  four  continents  of  the  new 
political  world,  and  the  sea  of  change  must  not 
be  suffered  to  wash  them  away.  The  spirit  of  de- 
mocracy was  abroad  and  insisted  in  participating 
in  the  reform  of  representation.  When,  in  1801, 
the  Assembly  yielded  to  public  clamor  and  called 
a  convention,  the  election  of  delegates  was  to 
last  three  days,  and  "  all  free  male  citizens  twenty- 
one  years  old  "  might  vote.§  This,  too,  was  revo- 
lution, for  by  the  constitution  of  the  State  no  man 

*  Act  of  March  27,  1778.  t  Act  of  March  26,  1781. 

t  By  the  constitution  of  1776;  also  see  act  of  March  4, 
1796.  §  Act  of  April  6,  1 801. 

196 


High  Standard  of  Political  Qualifications 

could  vote  save  he  who  possessed  a  freehold  of 
the  value  of  twenty  pounds,  or  rented  a  tenement 
worth  forty  shillings  a  year,  or  who,  in  Albany  or 
New  York,  had  been  admitted  a  freeman. 

In  New  Jersey  the  political  estate  was  more 
difficult  to  acquire.  There  the  freeholder  had  long 
been  required  to  own  one  hundred  acres  of  land, 
or  real  and  personal  property  of  the  value  of  fifty 
pounds,*  and  this  continued  to  be  the  require- 
ment when  the  colony  became  a  commonwealth.! 
By  the  constitution  of  1776  a  duly  qualified  inhabi- 
tant might  vote,  and  straightway  women,  aliens, 
and  free  negroes  having  the  requisite  property 
voted  —  in  five  counties — by  ballot.  Members  of 
the  Legislative  Council,  Assemblymen,  sheriffs, 
and  coroners  were  first  nominated  to  the  clerk  of 
the  court,  in  writing  or  personally,  by  the  electors. 
The  nomination  list  was  advertised  for  two  weeks 
before  the  election,  when  the  final  choice  was 
made  by  the  ballots  of  the  electors.^ 

In  Pennsylvania,  in  the  seventeenth  century, 
the  political  estate  was  in  the  exclusive  keep- 
ing of  the  freeholders.!  An  estate  of  fifty  acres 
was  equivalent  to  one  of  fifty  pounds.  A  taxable 
was  a  voter,  but  not  all  taxables  were  voters,  for 
the  franchise  was  granted  only  to  free  white 
males.  Just  as  the  eighteenth  century  was  clos- 
ing, the  democratic  spirit  gained  strength  enough 
in  the  State  to  require  only  manhood  suffrage — 

*  Acts  of  April  4,  1709;  December  16,  1783. 
t  See  Constitution,  1776. 

\  Act  of  February  22,  1797.  §  4  Annae,  1705. 

197 


Const  if  iiiional  Historv  of  fbe  American  People 

the  voter  paying  a  State  or  county  tax,  or  if  voting 
on  age — that  is,  for  the  first  time — no  previous  tax 
was  required.*  Delaware  was  long  a  part  of 
Penn's  province,  and  its  early  laws  closely  resem- 
ble those  of  Pennsylvania.!  So,  too,  did  the  laws 
of  Maryland.  But  in  Maryland  fifty  acres  of  land 
and  property  of  the  value  of  at  least  thirty  pounds 
were  equivalents. |  The  freeman  who  possessed 
cither  had  part  in  the  political  estate. 

No  province  began  on  a  more  liberal  theory 
than  Virginia.  At  first  all  freemen  voted,  but  a 
few  years'  experience  led  to  limitations.  The 
voter  must  be  a  freeman, §  a  householder,  as  in 
Massachusetts — and  a  freeholder,  as  was  common 
in  New  England.  Moreover  he  had  to  make 
oath  that  he  was  a  freeholder.  In  the  year  when 
Pennsylvania  exacted  a  suffrage  qualification  of 
fifty  acres  of  land,||  Virginia  required  the  elector 
to  own  "  real  estate  for  his  own  or  another's  life, 
or  in  fee,"  but  did  not  fix  the  amount.  Women, 
infants,  and  popish  recusants  were  excluded  from 
the  electorate  b}^  the  law  of  1699,  the  earliest  on 
the  subject  in  this  country.  Thirty  years'  trial  of 
the  law  requiring  the  voter  to  be  a  freeholder  led 
to  the  act  of  1736,  fixing  the  amount  at  one  hun- 
dred acres,  or  twenty-five  acres  "  with  house  and 
plantation  in  his  possession."  If  the  estate  lay  in 
two  counties,  the  owner  voted  where  the  greater 
part  lay.     The  requirement  was  too  heavy,  and  in 

*  February  15,  1799.  t  Delaware,  act  of  1741. 

I  Constitution,  1776.  §  Acts  of  1654-55-66. 

II  1705. 

198 


The  Ballot  in  North  Carolina 

1762  was  cut  down  to  fifty  acres,  "  unsettled,"  or 
twent3''-five  having  a  house  twelve  feet  square.  The 
act  of  1 769  excluded  women  and  free  negroes  from 
the  suffrage.  War  compelled  taxation.  A  poll-tax, 
in  kind,  was  imposed  in  1781  —  a  half-bushel  of 
wheat,  or  five  pecks  of  oats,  or  two  pounds  of 
sound  bacon;  but  later  in  the  year  the  tax  was 
fixed  at  ten  shillings. 

Election  by  ballot  was  established  by  the  North 
Carolina  Assembly  in  1743,  and  the  political  es- 
tate was  given  into  the  keeping  of  freeholders  pos- 
sessing each  fifty  acres  of  land  and  three  months 
inhabitants  of  the  county  and  six  months  of  the 
province.  The  constitution  of  1776  lengthened 
the  time  in  the  county  to  six  months  and  in  the 
State  to  twelve.  A  free  male  person  thus  quali- 
fied could  vote  for  Senator.  One  paying  "  public 
taxes"  could  vote  for  a  member  of  the  House  of 
Commons.  Thus,  free  negroes  possessed  the  con- 
stitutional right  to  vote.* 

In  1 72 1  South  Carolina  gave  the  right  to  vote 
to  free  whites  professing  the  Christian  religion, 
who  resided  one  year  in  the  province,  and  owned 
fifty  acres  of  land,  or  paid  a  tax  of  twenty  shillings. 
Sixty  years  before  the  Revolution  the  right  to 
vote  was  given  to  free  white  men  who  had  resided 
six  months  in  the  province,  who  were  worth  realty 
to  the  value  of  thirty  pounds,  current  money,  and 
who  professed  the  Christian  religion.!     Ten  years 

*  For  a  discussion  of  this  point,  see  debates  in  North  Carolina 
Constitutional  Convention,  1835. 
t  Act  of  December  15,  1716. 

199 


Const  it  111  ioual  H/sfory  of  ibc  American  People 

Liter  the  requirement  was  changed  to  fifty  acres 
of  land  or  the  payment  of  taxes  on  a  fifty-pound 
valuation  ;  the  religious  qualification  was  as  before. 
In  1745  the  property  qualification  was  raised  to  a 
freehold  estate  in  a  settled  plantation,  or  three 
hundred  acres  of  unsettled  land,  or  taxed  property 
worth  sixty  pounds.*  Fourteen  years  later  the  al- 
ternative was  allowed — an  estate  of  sixty  pounds 
in  houses,  or  a  tax  of  ten  shillings.!  This  was  the 
law  when  the  province  became  a  State.  Its  first 
constitution  omitted  to  prescribe  qualifications 
for  the  elector.  In  its  second,  1778,  he  was  de- 
fined as  a  free  white  man,  and  no  other,  who  ac- 
knowledged the  being  of  a  God,  believed  in  a 
future  state  of  rewards  and  punishments,  who  had 
attained  the  age  of  twenty-one  years,  had  resided 
in  the  State  a  year  before  the  election,  possessed 
a  freehold  estate  of  fifty  acres  or  a  town  lot  for 
six  months  at  least  before  the  polls,  or  had  paid  a 
tax  equal  to  the  tax  on  fifty  acres.  The  third  con- 
stitution, 1790,  modified  the  alternative  to  a  tax 
of  three  shillings  sterling.  The  qualification  at 
the  opening  of  the  nineteenth  century  was,  there- 
fore, but  Httle  changed  from  that  under  the  act  of 
1721. 

Georgia,  the  last  of  the  colonies,  was  founded  as 
the  poor  man's  paradise.  A  white  man  worth  ten 
pounds  and  a  taxpayer,  or  "of  any  mechanic  trade," 
could  vote,  by  the  constitution  of  1777.  The  con- 
stitution of  1789 — with  great  liberality  for  the  age 

*  May  25,  1745.  t  April  7,  1759. 


Aristocratic  Democracy  in  Virginia 

— required  only  the  payment  of  taxes  and  a  resi- 
dence of  six  months  in  the  county.  Kentucky, 
making  both  her  constitutions  almost  at  the  close 
of  the  century,  and  free  from  colonial  traditions, 
made  the  qualifications  of  the  elector  liberal.  A 
free  white  man  who  had  resided  in  the  State  two 
years,  or  for  one  year  in  the  county  in  which  he 
offered  to  vote,  was  an  elector  by  the  first  con- 
stitution— and  also  by  the  second,  which  special- 
ly excluded  negroes,  mulattoes,  and  Indians.  In 
Tennessee — or,  as  it  was  originally  called,  Wash- 
ington County,  or  District — the  laws  of  North 
Carolina  in  force  in  1795,  when  the  new  State 
was  organized,  were  formally  readopted  with  few 
exceptions.*  The  elector  was,  therefore,  required 
to  be  a  freeman  and  a  freeholder,  and  for  six 
months  an  inhabitant  of  the  count}^  in  which  he 
sought  to  vote.  North  Carolina  traditions  influ- 
enced Tennessee.  Virginia  traditions  in  Ken- 
tucky were  not  suffered  to  encumber  the  political 
estate.  The  new  West  was  essentially  democratic, 
as  the  first  constitutions  of  Kentucky  and  Ten- 
nessee attest.  But  their  democracy  must  be  meas- 
ured by  the  aristocracy  that  had  so, long  prevailed 
in  Virginia,  the  Carolinas,  and  Georgia,  and  not 
by  the  democracy  that  developed  in  the  country 
after  1800. 

In  no  State  was  democracy  further  advanced 
than  in  Vermont.  There  the  political  estate  was 
committed   to  freemen   who   had   resided   in    the 

*  Scott's  Laws,  2  vols.,  Knoxville,  1821. 
201 


Constitutional  History  of  the  American  People 

State  one  year,  and  who  would  take  the  oath  to 
vote  conscientiously  and  without  fear  or  favor  of 
any  man.*  This  was  manhood  suffrage,  the  most 
liberal  that  had  been  granted  in  America  thus 
far.  The  liberal  States  of  the  eighteenth  century 
were  New  Hampshire  and  Vermont  in  the  North 
and  Georgia  in  the  South. 

But  there  were  other  tests  required  of  those 
whom  the  Revolution  put  in  the  place  of  the  King. 
Not  merely  by  the  possession  of  property,  nor  by 
residence,  nor  because  of  age  and  racial  advantage, 
were  men  made  trustees  of  the  political  estate.  A 
religious  qualification  was  required.  This,  too, 
was  a  survival.  For  a  century  and  a  half,  "being 
in  church  fellowship  "  had  meant  in  Massachusetts 
membership  in  the  Congregational  Church.  The 
Church  of  England  was  established  in  South  Car- 
olina by  act  of  Assembly  at  the  opening  of  the 
eighteenth  century,!  and  its  second  constitution — 
1778 — while  granting  religious  toleration,  declared 
"the  Christian  Protestant  relisfion "  to  be  the 
established  reliii^ion  of  the  State.  Connecticut  and 
New  Hampshire  resembled  Massachusetts  in  their 
provisions  respecting  church -membership  as  a 
political  qualification ;  Virginia  resembled  South 
Carolina.  But  resemblance  is  not  identity.  In 
other  States  religious  sects  abounded  and  multi- 
plied till  public  opinion  resembled  that  which 
ruled  in  the  federal  convention  when  the  qualifi- 

*  See  Constitution,  1777. 

+  See  acts  of  November  4,  1704;  December  18,  1708;  April  8, 
1 7 10. 

202 


Disappearance  of  the  Religious  Qualifications 

cations  for  office  were  under  consideration ;  no 
religious  qualification  could  be  adopted  that  would 
please  all  the  States ;  therefore  all  were  abandoned. 
South  Carolina,  in  its  third  constitution — 1790 — 
abandoned  its  State  religion,  and  granted  freedom 
of  worship  to  all  sects  whose  practices  were  not 
inconsistent  with  the  peace  or  safety  of  the  State. 
The  religious  qualifications,  so  strong  in  some 
colonies  for  a  time,  in  as  far  as  they  affected  the 
voter,  may  be  said  to  disappear  with  the  abandon- 
ment of  the  first  South  Carolina  constitution  in 
1790.  The  constitution  of  Massachusetts  did  not 
require  church  -  membership.  For  a  time  public 
opinion  did,  but  this  encumbrance  on  the  political 
estate  may  be  said  to  have  been  fully  satisfied  be- 
fore 1820.*  The  office -holding  class  was  not  ex- 
empted so  early.  Governors  and  legislators  must 
give  security,  and  none  other  was  thought  equal  to 
the  property  and  religious  qualifications.  No  man 
known  to  be  irreligious  could  have  been  chosen 
Governor  of  Rhode  Island  or  Connecticut  in 
colonial  times.  In  public  opinion  this  was  an  un- 
written qualification.  Had  the  office  been  elec- 
tive in  other  colonies,  probably  the  result  would 
have  been  similar.  The  colonial  period  was  one 
during  which  property,  integrity,  and  religion  were 
inseparable  in  the  public  mind.  It  may  be  said 
now  that  church-membership  is  no  longer  conclu- 
sive evidence  of  probity  or  integrity.     A  man  is 

*  Amendment,  Art.  vii.  (proposed  by  constitutional  convention, 
1820;  ratified  April  9,  1821).  See  also  Amendment,  Art.  xi.,  rati- 
fied November  1 1,  1833. 

20.-^ 


Const  it  uiioual  History  of  the  Aincrican  People 

not  defeated  at  the  polls,  as  he  would  have  been 
during  the  greater  part  of  the  eighteenth  century, 
simply  because  he  is  not  a  church- member.  Is  it 
not  fair  to  conclude  that  the  people  of  that  time 
had  no  other  equally  good  test?  Or,  at  least, 
that  they  thought  so  ? 

In  1705 — and  the  law  was  re-enacted  thirty-six 
years  later  in  Delaware — a  member  of  Assembly  in 
Pennsylvania  was  required  to  profess  faith  in  the 
Trinity  and  the  inspiration  of  the  Scriptures.  It  was 
proposed  to  incorporate  the  same  oath  in  the  con- 
stitution of  the  State  in  1776,  and  to  have  it  apply 
to  the  electors  and  all  of^cials.  Franklin,  the 
president  of  the  convention,  succeeded  in  limiting 
the  oath  to  members  of  Assembly  and  in  modify- 
ing it  merely  to  a  declaration  of  belief  in  God,  the 
inspiration  of  the  Scriptures,  and  a  future  state  of 
rewards  and  punishments.  The  change  in  public 
opinion  respecting  requirements  of  this  kind  is  re- 
corded in  the  constitution  of  the  State,  of  1790,  in 
which  the  old  provision  barely  survives  in  negative 
form,  that  no  person  who  acknowledges  the  being 
of  a  God  and  a  future  state  of  rewards  and  punish- 
ments shall,  on  account  of  his  religious  sentiments, 
be  disqualified  to  hold  ofifice  in  the  State.  And 
this  provision  is  repeated  in  the  constitutions  of 
1838  and  1873.  In  1704,  the  year  before  the  Penn- 
sylvania act,  the  South  Carolina  Assembly  had 
passed  one  of  stricter  ecclesiastical  tenure.  Mem- 
bers of  Assembly  who,  within  twelve  months,  had 
not  received  the  sacrament,  were  required  to  take 
it  according  to  the  Church  of  England;  and,   in 

204 


Exclusion  from  Office  for  Religious  Belief 

open  Assembly,  to  deliver  proper  certificate  to  the 
fact,  signed  by  the  minister,  or  to  prove  the  fact  by 
two  witnesses  on  oath.  It  is  not  strange  that  the 
first  constitution  of  the  State,  seventy -two  years 
later,  should  contain  some  survival  of  a  public 
opinion  that  could  dictate  such  a  law.  The  New 
England  States,  New  Jersey,  and  North  Carolina, 
either  by  law  or  in  their  constitutions,  limited  office- 
holding  to  Protestants.*  In  North  Carolina  the 
qualification  at  last  led  to  the  calling  of  the  con- 
vention of  1835  to  modify  the  phrase.  Jews  were 
practically  excluded  from  public  office  everywhere, 
and  Roman  Catholics  also,  except  in  New  York  and 
Maryland.  These  sects  were  not  numerous  in  the 
country  in  the  eighteenth  century,  but  they  ex- 
isted in  numbers  sufficient  to  prove  a  powerful 
accessory  to  the  political  party  that  should  first 
declare  for  reforms  in  the  franchise.  They  were 
joined,  of  course,  by  that  increasing  number  of 
non  -  church  people  who  considered  all  religious 
qualifications  a  violation  of  human  rights. 

In  1800  there  were  one  hundred  and  eight  thou- 
sand free  persons  of  color,  and  eight  hundred  and 
ninety  thousand  slaves.  The  slaves  counted  as 
five  hundred  and  thirty -five  thousand  persons  in 
the  apportionment  of  representation  in  Congress. 
The  free  negroes  were  in  an  anomalous  condition, 
and  were  politically  a  people  without  a  country. 

*  By  the  constitution  of  1780  the  candidate  for  Governor  of 
Massachusetts  was  required  to  be  worth  ^1000  and  "to  declare 
himself  to  be  of  the  Christian  religion."  The  religious  test  was 
abolished  in  1821,  and  the  property  qualification  in  1892. 

205 


Conslitittioual  H/sfory  of  the  American  People 

In  ten  years  their  number  had  nearly  doubled.  Of 
their  number,  in  the  aggregate,  during  colonial 
times,  there  is  no  reliable  record,  but  the  record  of 
their  relations  to  society  is  ample  and  mournfully 
uniform. 

Negro  emancipation  had  never  been  encouraged 
in  the  colonies.  The  young  and  the  old  could  not 
be  emancipated,*  and,  usually,  he  who  set  a  negro 
free  was  required  to  give  a  heavy  bondf  to  provide 
against  his  becoming  a  charge  on  the  public. | 
The  freedman  was  hedged  about  by  limitations. 
His  certificate  of  emancipation  must  be  recorded, 
and  without  it  he  could  not  safely  travel  within  the 
county  in  which  he  lived,!  nor  leav^e  it  save  at 
peril  of  being  sold  into  slavery. §  He  could  not 
be  a  witness  against  a  white  man.||  If  he  neg- 
lected to  work,  he  and  his  children  could  be  bound 
out  to  labor.§  In  Virginia,  until  the  constitution 
of  1776,  no  negro  could  be  set  free  unless  for  mer- 
itorious service,]!  and  then  only  with  the  consent 
of  the  Governor  and  Council.  On  training-days 
and  at  musters,  the  free  negro,  in  Massachusetts** 


*  Those  sound,  from  twenty -one  to  forty  years  old;  act  of 
New  Jersey,  March  14,  1798.  In  Maryland,  not  if  above  fifty  years 
of  age  ;  act  of  June  23,  1752. 

t  New  Jersey,  act  of  March  14,  1798. 

X  Virginia,  1691  ;  emancipator  to  pay  for  his  transportation  out 
of  the  colony. 

p  New  Jersey,  act  xii.,  George  I.,  1725. 

II  Maryland,  acts  of  June  8,.  171 7;  December  31,  1796. 

T^  In  Virginia,  in  1779,  a  negro,  Kitt,  obtained  his  liberty  for  dis- 
covering a  gang  of  counterfeiters.  The  State  bought  him  for 
^1000  and  set  him  free. 

=•'*  Massachusetts,  act  of  1699;  confirmed,  May  28,  1707. 

206 


Forerunners  of  Negro  Emancipation 

and  Virginia*  alike,  must  appear,  without  weapons, 
and  do  whatever  menial  service  was  required  of 
him.  He  mio^ht  be  allowed  to  serve  as  drummer 
or  trumpeter,  but  usually  he  was  found  about  the 
officers'  quarters  at  servile  labor.  An  act  of  the 
Virginia  Assembly  of  1777  emancipated  a  negro 
woman  and  her  child  whom  one  Barr  had  emanci- 
pated by  will,  with  which  the  royal  Governor  had 
refused  to  concur ;  but  the  act  concluded  in  the 
usual  form — "  not  to  be  construed  as  a  precedent." 

Every  precaution  was  taken  to  prevent  the  social 
meeting  of  free  negroes  and  slaves.  North  Caro- 
lina explicitly  forbade  it  "  on  Sunday,  or  between 
sunset  and  sunrise."!  For  the  first  offence  the 
penalty  was  twenty  shillings,  and  twice  the  amount 
for  every  subsequent  one.  South  Carolina  and  New 
York  were  in  contrast  in  their  dealing  with  the  sub- 
ject. New  York  was  friendly  to  emancipation,  pro- 
vided proper  bond  was  given;  and  in  1792  empow- 
ered the  State  treasurer  to  pay  to  the  overseers  of 
the  poor  in  various  towns  money  sufficient  to  sup- 
port manumitted  slaves  who  had  become  a  public 
charge.  Vermont  was  the  first  State  to  apply  the 
doctrine  of  human  equality  to  negroes,  its  law  de- 
claring, tersely,  that  "  the  idea  of  slavery  is  express- 
ly and  totally  exploded  from  our  free  government."^ 

The  constitutions  of  the  eighteenth  century  are 
silent  respecting  free  persons  of  color.  They  were 
not  included  in  the  political  estate.  Virginia  and 
Maryland  had  each  twenty  thousand ;  Pennsylvania, 

*  Virginia,  1755.  t  North  Carolina,  1727. 

+  Vermont,  1787. 

207 


Constitutional  History  of  the  American  People 

fourteen  thousand  ;  New  York,  ten  thousand  ;  Del- 
aware, eight  thousand ;  Massachusetts  and  North 
CaroHna,  about  seven  thousand  each  ;  Connecticut, 
five  thousand ;  New  Jersey,  four  thousand ;  Rhode 
Island  and  South  Carolina,  each  three  thousand  ; 
Georgia,  one  thousand ;  New  Hampshire,  eight 
hundred  ;  Kentucky,  seven  hundred ;  Vermont,  five 
hundred ;  Tennessee,  three  hundred ;  about  five 
hundred  were  living  north  of  the  Ohio  ;  eight  hun- 
dred in  the  district  of  Maine;  and  less  than  two  hun- 
dred in  what  was  soon  to  be  known  as  Mississippi. 
Whether  in  New  England,  the  Middle  States, 
or  the  South,  the  free  negro  found  every  man's 
hand  against  him.  In  New  Jersey  and  North 
Carolina  the  constitution  did  not  forbid  his  vot- 
ing, but  public  opinion  was  an  unwritten  consti- 
tution. He  was  an  outcast;  overlooked  by  the 
tax-gatherers,  refused  admission  to  the  schools,  de- 
nied entrance  to  the  trades,  dwelling  on  the  thorny 
edge  of  village  life,  doctored  by  charity,  watched 
by  a  slave -holding  democracy,  rejected  from  the 
society  of  the  white  race  and  forbidden  to  mingle 
freely  with  his  own.  Yet  the  function  he  served 
was  a  sort  of  political  metaphor.  How  could 
slavery  be  the  African's  "  natural  and  normal  con- 
dition," and  there  be  free  persons  of  color.?  At 
the  opening  of  the  nineteenth  century  more  than 
a  hundred  thousand  persons  were  embodiments  of 
the  paradox.  Would  the  time  ever  come  when 
they  would  form  a  part  of  the  political  estate  1  If 
any  commonwealth  chose  to  admit  them  to  citizen- 
ship, what  effect  would  it  have  on  interstate  re- 

208 


stern  Functions  of  the  State 

lations  ?  What  interpretation  would  be  put  on  the 
words  of  the  national  Constitution,  that  "  The  citi- 
zens of  each  State  shall  be  entitled  to  all  privileges 
and  immunities  of  citizens  in  the  several  States  "? 
What  conflict  was  latent  in  the  fact  and  the  con- 
dition of  free  negroes  ?  American  democracy, 
at  the  opening  of  the  nineteenth  century,  gave  lit- 
tle sign  that  it  was  conscious  of  the  impending 
changes  in  the  political  estate  which  were  to  be 
effected  in  recognition  of  the  rights  of  free  persons 
of  color.  As  yet  no  political  party  intimated  that 
such  persons  had  rights  which  democracy  was 
bound  to  respect. 

From  this  brief  survey  of  one  aspect  of  the 
political  estate  at  the  opening  of  the  new  century, 
it  appears  that  government,  in  American  democ- 
racy, was  at  this  time  in  the  hands  of  the  few 
who  were  conventionally  restrained  from  political 
wrong -doing  by  social,  religious,  and  property 
qualifications.  The  mass  of  the  population  was 
excluded  from  the  estate.  Yet  few  escaped  taxa- 
tion. The  value  of  property,  not  the  votes  of  elec- 
tors, controlled  the  democracy  of  the  day.  Prop- 
erty was  the  electoral  check  and  balance. 

What  did  the  State  do  for  the  people }  It  is 
easier  to  tell  what  it  did  not  do.  It  did  not  give 
them  free  schools,  free  hospitals,  or  free  asylums. 
Its  penal  code  was  punitive,  not  remedial,  save 
in  Pennsylvania.  Commerce,  trade,  and  transpor- 
tation were  monopolized  by  individuals,  and,  as 
yet,  competition  but  slightly  benefited  the  public. 
The  poor-house  was  the  common  receptacle  for 
I. — o  209 


Const H lit ional  History  of  the  American  People 

the  insane,  the  imbecile,  the  orphan  child,  and  the 
aged  and  decrepit  pauper. 

Government  of  this  kind  fostered  streaks  of 
class  and  petty  social  distinctions.  The  landless, 
the  laboring  class,  the  mechanics,  and  the  young 
apprentices  were  at  the  bottom ;  the  landholders, 
the  well-born,  the  merchants,  the  doctors,  the  min- 
isters were  high  in  the  scale.  The  new  wine  of 
democracy  was  flowing  over  the  country  and  a 
counter-revolution  was  at  hand.  Who  was  to 
gather  together  the  masses  and  consolidate  the 
disaffected  into  a  powerful  party.?  Who  would 
advocate  the  extension  of  the  suffrage,  the  aboli- 
tion of  property  and  religious  tests  .'^  How  long 
before  democracy,  the  masses,  would  be  demand- 
ing a  share  in  the  political  estate } 

Thus,  as  the  new  century  opened,  though  the 
power  of  property  was  in  the  saddle,  the  democ- 
racy of  men  was  at  hand.  Unless  America 
should  be  a  government  of  men,  the  theories  of 
the  eighteenth  century  would  have  to  be  aban- 
doned, and  the  new  governments,  in  nation  and 
commonwealth,  would  fail  for  lack  of  men.  If 
all  men  were  created  equal,  then  the  mass  of 
provincial  legislation  which  the  commonwealths 
inherited  must  be  in  large  measure  discarded. 
New  laws,  consistent  with  the  dominant  ideas  of 
democracy,  must  be  made.  The  resolution  of 
the  New  Hampshire  Congress,  eight  months  be- 
fore the  Declaration  of  Independence  was  written, 
was  a  hint  of  the  way  men  were  going  and  of  im- 
pending changes  in  the  organization  of  society. 

2IO 


CHAPTER  VIII 
THE  FIRST  MIGRATION  WEST 

Among  the  fireside  stories  of  the  old  Northwest 
none  is  more  frequently  told  than  that  of  General 
Wayne's  victory  over  the  Indians  at  Maumee,*  his 
treaty  with  them  at  Greenville,!  and  how  the  de- 
feated savages  were  forced  to  give  up  their  lands 
to  the  whites.  From  that  day  the  Western  coun- 
try could  be  travelled  in  safety,  and  immigrants 
could  take  up  lands.  For  nearly  a  century  and  a 
half  England  and  France  had  struggled  for  this 
region,  and  their  struggle  came  to  a  strange  end- 
ing. The  brooding  mind  of  Pontiac,  "  King  and 
lord  of  all  the  Northwest,"  had  conceived  the  ter- 
rible plot,  only  twenty-two  years  before,  to  drive 
the  English  over  the  Alleghany  Mountains,  and 
destroy  every  white  person  found  west  of  Chau- 
tauqua Lake.  Traditions  of  Pontiac's  conspiracy 
still  linger  in  the  Northwest. 

From  the  day  of  Wayne's  victory  Indian  at- 
tacks were  no  longer  feared  in  Western  Pennsyl- 


*  August  20,  1794. 

t  The  treaty  at  Greenville,  August  3,  1795,  opened  to  settle- 
ment the  country  from  Cleveland  westward  and  southwestward, 
within  the  "Wilderness  Road  "  shown  on  the  map  of  the  United 
States,  1796.     See  Map  opposite  p.  158. 


Const  if  iifioihil  History  of  tlw  American  Teople 

vania  and  in  Eastern  Ohio.  Beyond  Fort  Wayne 
the  country  was  infested  by  hostile  tribes,  and 
other  victories  must  be  won  before  it  could  be 
open  to  settlement.  Wayne's  victory  was  speedily 
followed  by  the  settlement  of  the  lake  shore  from 
Black  Rock  to  Detroit.  Western  New  York  and 
the  greater  part  of  the  Triangle  in  Pennsylvania 
were  claimed  by  the  Holland  Land  Company. 
Speculation  in  land  was  one  of  the  chief  vices  of 
the  time.  Individuals  and  companies  expected 
to  reap  fabulous  wealth  from  the  rise  in  land 
values.  Before  the  eighteenth  century  closed 
every  acre  of  land  which  Wayne's  victory  had 
brought  within  reach  of  immigration  was  entered 
in  some  scheme  of  speculation.  Of  the  best  of 
these  companies  the  Harrisburg  and  Presque  Isle 
was  a  type.  It  was  formed  on  the  13th  of  August, 
1796,*  by  ten  men,  who,  under  a  written  compact 
styled  a  constitution,  agreed  to  pay,  severally,  the 
sum  of  two  hundred  pounds,  as  common  stock,  to 
be  expended  "  in  the  purchase  of  in  and  out  lots  in 
the  towns  of  Erie  and  others,  and  of  lands  in  the 
State  of  Pennsylvania,  north  and  west  of  the  Ohio 
and  Alleghany  rivers."  The  purchases  were  at 
Erie.  Waterford,  and  Franklin.  In  Erie  the  com- 
pany paid  from  three  to  eighteen  dollars  for  lots 
on  Holland,  German,  State,  French,  and  Parade 
streets,  below  Seventh ;  for  the  corner  lot  at 
Second  and  German,  and  for  the  opposite  corner, 
"  on  the  road  to  the  Fort,"  two  hundred  and  sixty 

*  See  Forster's  Manuscript  Letter -book  for  account  of  this 
company. 

212 


The  united  States 

IN  1800 

SHOWING  CIVIL  DIVISIONS 
i^AND  DISTRIBUTION  OF  POPULATION 


Transportafion  in  the  New  West 

dollars  each.  For  five -acre  out -lots  the  price 
ranged  from  thirty -three  to  sixty -nine  dollars. 
Fifty-five  dollars  were  paid  at  Franklin  for  an  in- 
lot  at  the  mouth  of  the  French  Creek,  and  from 
fifteen  to  fifty-nine  dollars  for  in-lots  at  Waterford, 
which,  at  this  time,  promised  to  be  at  the  head  of 
navigation  in  this  part  of  the  Ohio  Valley.  A 
portage  to  Erie,  fifteen  miles  to  the  north,  would 
make  the  great  lakes  and  the  Ohio  a  commercial 
highway.  Washington  had  a  similar  dream  of 
uniting  them  by  a  canal  from  Chautauqua  Lake  to 
Lake  Erie. 

The  company  originated  at  Harrisburg,  and 
rated  its  shares  at  fifty  dollars  each.  Profits  were 
expected  from  sales  of  lands  incident  to  immigra- 
tion, also  from  a  grist-mill  which  the  company  pro- 
ceeded to  erect  at  Erie.  Milling  supplies  were 
hauled  by  wagon  from  Harrisburg.  The  road  was 
fairly  passable  as  far  as  Pittsburgh,  but  from  that 
point  to  Erie  was  for  long  distances  scarcely  more 
than  a  bridle-path.  In  summer,  at  low-water,  much 
of  the  journey  could  be  made  over  the  bed  of  the 
French  Creek.  The  journey  from  Harrisburg  con- 
sumed nearly  four  months. 

Three  other  "  population  companies  "  were  specu- 
lating at  this  time  in  Pennsylvania  lands;  Aaron 
Burr,  with  others,  had  devised  the  Pennsylvania 
Company,  received  a  charter  from  the  Legislature 
in  1793,  and  purchased  land -warrants  covering 
nearly  the  entire  Triangle.  To  encourage  immigra- 
tion, this  company  offered  to  give  one  hundred 
acres  to  each  of  the  twenty  families  that  should 

213 


Coiisfititlioihil  History  of  the  American  People 

first  settle  "  on  Lake  Eric  territory."  The  settler 
was  to  clear  ten  acres,  erect  a  comfortable  dwelling- 
house,  and  live  in  it  two  years — "  unless  driven  off 
by  Indians."  The  time  during  which  the  Indians 
might  drive  him  into  involuntary  exile  was  not 
to  be  counted  against  him,  and  his  heirs  were 
privileged  to  continue  his  claim. 

Two  streams  of  population  were  at  this  time 
converging  at  Erie  —  one  from  Pennsylvania, 
Dauphin  County,  chiefly;  the  other  from  New 
England,  and,  principally,  Connecticut  and  Eastern 
New  York.  The  Pennsylvania  stream  was  rein- 
forced in  Alleghany  and  Westmoreland  counties, 
and  consisted  chiefly  of  people  of  Scotch -Irish 
stock.  The  New  England  migration  was  of  Eng- 
lish stock.  Nearly  all  were  farmers,  and,  as  was 
often  the  case,  neglected,  or  were  unable  to  se- 
cure, good  land-titles.  Some  held  from  one  com- 
pany, some  from  another ;  some  from  individuals ; 
and  many  had  title  only  by  possession.  The  first 
crop  was,  therefore,  one  of  lawsuits.  A  test  case 
at  last  reached  the  Supreme  Court,  and  John 
Marshall  sustained  the  claims  of  the  Holland 
Land  Company.*  In  consequence,  many  pioneers 
were  forced  to  pay  for  their  land  again  or  lose  it. 
Some  preferred  to  abandon  their  claim  and  take 
up  cheap  government  land  in  Ohio.  Others,  at 
great  sacrifice,  paid  the  second  time.  They  "went 
sailing  on  the  lakes";  they  made  pearlash ;  they 

*  See  Huidekoper's  Lessee  vs.  Douglass,  3  Cranch,  pp.  3-73  ; 
the  case  gives  much  information  regarding  the  condition  of  the 
Chautauqua  country  from  1792  to  1800. 

214 


Unsettled  Condition  in  the  Chautauqua  Countiy 

raised  a  few  "  extra  head  "  of  cattle ;  they  hired 
out  their  labor.  The  evil  reputation  which  the 
Triangle  got  among  immigrants  from  the  East, 
on  their  way  to  the  Ohio  country,  helped  some 
Pennsylvania  farmers  who  were  struggling  to  pay 
ao:ain.  Farm-houses  were  converted  into  tem- 
porary  inns,  and,  by  entertainment  of  man  and 
beast,  the  owners  gathered  a  little  silver  money,* 
Similar  were  the  difificulties  in  Western  New 
York ;  but  for  these  the  settlers  themselves  were 
chiefly  to  blame.  Many  relied  on  mere  possession 
to  give  title.  Some  claimed  under  bargains  with 
the  Indians.  Some  had  bought  of  the  Holland 
Company  and  defaulted  payment.  News,  more  or 
less  exaggerated,  of  cheap  lands  in  the  West  kept 
the  Chautauqua  country  in  unrest,  and  was  made 
an  excuse  for  unsettled  payments.  Not  until  1835 
were  the  disputes  ended — when  William  H.  Sew- 
ard, then  a  young  lawyer  from  Albany,  appeared 
at  Westfield  as  the  agent  of  the  Holland  Company.! 
By  judicious  compromises  he  secured  title  for  the 
farmers,  quieted  the  angry  spirit  of  the  region, 
and  by  his  integrity  and  administrative  skill  laid 
the  foundation  of  his  popularity  in  Western  New 
York.  His  pacific  settlement  of  the  land  troubles 
contributed  largely  to  his  election  as  Governor  of 

*  My  knowledge  of  early  life  along  the  Lake  Shore  from  Buf- 
falo to  Cleveland  has  been  principally  derived  from  information 
contained  in  the  letters  of  early  settlers,  from  conversations  with 
many  of  them,  from  the  Forster  manuscripts,  and  from  early 
newspapers,  especially  the  Buffalo  Gazette. 

t  His  land-office,  a  low,  one-story  brick  building,  was  standing 
in  1885. 

215 


Const  it  III  ioual  History  of  the  American  People 

the  State  in  the  following  year.  It  was  this  elec- 
tion that  opened  the  way  to  a  national  career. 

In  1799  the  Northwest  was  erected  into  a  rev- 
enue district,  with  Presque  Isle  as  the  port  of  en- 
try. Adams  appointed  Thomas  Forster  collector, 
and  he  held  the  office  for  thirty-eight  years — the 
longest  service  of  the  kind  in  our  history.  The 
first  entry  was  an  open  boat,  called  the  Sche7iectady^ 
with  a  cargo  valued  at  $81 1.85.  Its  invoice  shows 
the  demands  of  the  country  in  1801.*  There  were 
muslins,  and  cotton  shawls  at  $3.75  apiece;  green 
cloth  and  blue  at  $3  a  yard  ;  elastic  stripe  at  $1.25  ; 
spotted  kerseymere  of  American  manufacture 
at  $1.40  per  yard;  men's  stockings  at  $1  a  pair; 
worsted  caps  for  men  and  women  at  25  cents  each  ; 
watch-chains  at  34  cents,  and  watch-keys  at  15 
cents;  two  dozen  crooked  combs  at  $1  each; 
penknives  at  $1.50;  tin  snuff-boxes  at  5  cents; 
glass  pendalls  at  34  cents;  bridle-bits  at  54  cents; 
golosh  shoes  at  $2.25;  almanacs;  pistols  at  $7; 
weaving-reeds;  and  needles  at  $2  a  thousand. 

The  Prince  brought  puncheons  of  spirits,  bags 
of  cocoa,  and  hogsheads  of  molasses ;  the  Nep- 
tune^ chests  of  hyson  ;  the  Tulip,  silk  shoes  and 
china-ware ;  the  Dauphin,  claret,  spermaceti  can- 
dles, cases  of  jewelry  and  plated  ware,  and  bandana 
handkerchiefs ;  the  Wilkinson,  bound  for  Detroit, 
carried  cannon,  shot,  wine,  muster-rolls,  candles, 
and  carriages.  But  the  goods  entered  at  the  port 
were  a  small   part  of  the  merchandise  imported 

*  Custom-house  records,  Erie,  Pennsylvania. 
216 


Smuggling  Tendencies  of  Some  Early  Pioneers 

into  the  country.  Every  large  creek  along  the 
south  shore  of  Lake  Erie  concealed  smugglers. 
The  collector  was  distracted  by  conflicting  re- 
ports. Some  one  had  seen  a  coat  made  of  broad- 
cloth on  the  back  of  a  man  from  Ashtabula; 
another  had  seen  lights  at  the  mouth  of  the 
Twelve-mile  Creek ;  a  third  had  seen  new  goods 
exposed  for  sale  at  Freeport ;  a  fourth  had  seen 
the  sloop  Good  Intent  off  shore,  and  Master  Lee, 
as  everybody  knew,  was  a  bold  smuggler.* 

Jefferson's  policy  of  non  -  intercourse  was  not 
successful  or  popular  in  the  Northwest,  Smug- 
gling increased  daily.  In  vain  did  Gallatin  com- 
plain and  Forster  report.  Not  a  vessel  could 
leave  Presque  Isle  "  without  the  special  permis- 
sion of  the  President."  Gallatin  instructed  For- 
ster that  while  temptation  to  import  every  species 
of  merchandise  contrary  to  law  might  exist,  the 
collector  would  only  have  to  encounter  "  the  com- 
mon acts  of  smuggling,  and  not  the  interests 
and  prejudices  of  the  community."  Gallatin  lit- 
tle understood  the  pioneers  along  the  great  lakes. 
Smuggling  might  be  an  offence,  but  certainly 
not  a  crime.  They  thought  themselves  entitled 
to  the  privilege  of  purchasing  goods  at  the  lowest 
possible  price.  The  United  States  government 
was  a  thousand  miles  away. 

At  this  time  the  settlers  living  in  Westfield 
were  compelled  to  go  to  Canada  to  have  their 


*  Custom-house  records,  Erie,  Pennsylvania.     Also  Forster's 
letters. 

217 


Constitutional  History  of  tiie  American  People 

grain  ground,  and  the  farmers  in  Eric  County 
went  to  Pittsburgh.  Money  was  so  scarce  as  to 
be  a  curiosity.  Settlers  were  coming  in  daily. 
They  had  been  three  months  on  the  way  from 
New  England;  they  had  come  in  ox -carts.  At 
night  they  had  stopped  with  some  of  the  num- 
erous tavern-keepers  along  the  way,  paying  six- 
teen pence  for  lodging  and  the  use  of  the  fire- 
place— for  they  brought  their  food  and  cooking 
utensils  with  them.  When  the  immigrant  had 
located  his  claim,  he  at  once  began  underbrush- 
ing  and  logging.  His  house  was  of  logs  saddled 
and  notched;  the  roof  of  bark,  kept  down  by 
weight-poles.  The  square  chimney  of  sticks,  cob- 
laid,  was  plastered  on  the  inside  with  mud  mixed 
with  chopped  straw.  The  "  door-cheeks  "  were 
puncheons,  and  the  door  swung  on  wooden  pins. 
Many  cabins  had  only  blanket  doors.  The  win- 
dows were  of  paper,  or,  in  rare  instances,  of  panes 
of  glass  four  by  six  inches.  The  bedstead  was 
of  poles ;  the  table  was  the  blue  chest  brought 
from  New  England.  A  few  teacups,  saucers, 
wooden  or  pewter  plates,  an  iron  pot,  a  spider, 
a  bake-kettle,  a  cotton  or  tallow  dip,  or  a  turnip 
lamp ;  a  rude  shelf  supporting  the  Bible,  a  copy 
of  Allen's  Alarm,  or  The  Pilgrims  Progress,  or 
Baxter's  Saint's  Rest;  a  gun  across  two  pegs; 
skins  stitched  and  tacked  to  the  logs ;  a  few 
three-legged  stools  and  a  gourd  dipper,  com- 
pleted the  furniture.  Near  the  house  a  similar 
building  sheltered  a  cow,  a  yoke  of  oxen,  and  a 
litter  of  pigs. 

218 


The  Cradle  of  Our  Industries 

With  the  heaps  of  glowing  ashes  the  pioneer 
paid  for  his  land.  The  first  patent  granted  by  the 
United  States  was  for  an  improvement  in  the 
manufacture  of  pearlash.  At  first  the  black  salts 
brought  only  two  or  three  cents  a  pound ;  but  the 
price  advanced  until  1825,  when  above  five  hun- 
dred tons  were  shipped  from  Westfield,  and  more 
than  forty-five  thousand  dollars  were  paid  to  the 
farmers  of  Chautauqua  County.  The  early  settlers 
had  not  even  hand-mills,  but  were  compelled  to 
extemporize  a  substitute — as  a  spring  pole,  with  a 
suspended  stone  or  cannon-ball,  and  the  concave 
surface  of  a  hickory  stump. 

The  loom  was  soon  set  up,  for  the  flax  had 
been  sown.  The  entire  manufacture  of  cloth  and 
clothing  for  the  household  was  done  by  the 
women.  Linen  sheets,  counterpanes,  and  hand- 
kerchiefs were  woven  in  white  and  blue.  As  soon 
as  the  farm  was  stocked  with  sheep,  woollen 
goods  were  woven,  and  men  and  boys  wore  but- 
ternut suits  of  linsey-woolsey.  While  working  in 
the  clearing  or  in  the  field  the  men  sometimes 
wore  leather  breeches,  and  a  common  clause  in 
the  early  wills  of  the  region  is  the  devise  of  the 
father's  leathern  clothes  to  his  eldest  son. 

From  an  early  day  the  teachings  of  Calvin  gave 
character  to  the  people  in  the  scattered  settle- 
ments of  Upper  Buffalo,  Conewango,  Chartiers, 
Meadville,  Erie,  and  Cleveland.  The  Presbyterian 
faith  prevailed.  The  early  ministers  were  cir- 
cuit-riders. New  England  licentiates,  and  preach- 
ers duly  ordained.     They  came  chiefly  from  Con- 

219 


Constitutional  History  of  tljc  American  People 

necticut  or  central  Pennsylvania,  and  many  were 
bred  in  the  divinity  school  at  Yale.  A  sinc^le 
sermon  fed  the  entire  circuit,  which  extended  from 
Albany  to  Cleveland,  from  Presque  Isle  to  Pitts- 
burgh. 

Armed  with  his  Bible  and  his  rifle,  the  preacher 
traversed  the  wilderness  and  passed  his  years  in  a 
life  of  rude  romance.  Overtaken  by  night  and 
storm,  he  stopped  at  some  friendly  cabin,  or,  turn- 
ing his  horse  loose,  slept  for  safety  in  the  crotch 
of  a  tree.  He  shared  the  rough  life  of  the  times. 
The  news  of  the  world  travelled  with  him,  and  his 
saddle  -  bags  contained  the  closely  written  and 
firmly  sealed  letter  from  the  mother  in  the  East 
to  her  children  in  the  West.  With  day's  labor 
the  pioneers  had  built  the  meeting-house  of  logs 
and  bark  and  puncheons.  The  seats  were  logs, 
the  pulpit  the  stump  of  a  tree.  The  house  had 
neither  fireplace  nor  stove.  On  the  day  ap- 
pointed for  service,  people  came  with  provisions 
to  last  a  week.  Fires  were  kindled,  kettles  were 
swung,  food  was  unpacked,  rude  tables  were 
spread,  the  hum  of  voices  and  the  shouts  of  new 
arrivals  filled  the  air.  The  lonely  meeting-house 
suddenly  became  the  centre  of  a  camp -meeting. 
The  preacher  arrived  in  company  with  one  of  the 
elders,  at  whose  house  he  had  spent  the  night. 
After  many  greetings  and  inquiries,  the  service 
began  out-of-doors,  for  the  meeting-house  was  too 
small  to  hold  the  people.  At  the  sound  of  the 
conch  -  shell,  order  and  silence  reigned,  and  the 
preacher  began   by   lining  a  psalm   from   Rowe's 


Itinerant  Teachers  of  Christianity 

version.  The  melody  was  a  minor  rondo  or  a 
familiar  Scotch  tune.  Oftentimes  the  only  hymn- 
book  was  the  minister's  memory.  The  prayer  was  a 
sermon  in  itself;  the  sermon  would  make  a  book. 
All  the  way  from  Connecticut  the  sermon  had 
been  gathering  length  and  strength.  It  abounded 
in  exciting  personal  experiences,  thrilling  illustra- 
tions, and  fearful  warnings. 

On  the  fourth  day  the  communion-tables  were 
prepared,  the  seven  deadly  sins  were  reviewed, 
the  tables  were  "fenced,"  and  the  leaden  tokens 
were  distributed  to  communicants.  The  sacra- 
ment was  solemnly  observed.  With  a  wondering 
look,  the  Indian,  hidden  from  view,  beheld  a  strange 
sight  in  his  native  woods. 

About  the  opening  of  the  second  decade  of  the 
century  a  few  Methodist  preachers  ventured  into 
the  land ;  but  they  were  suspected  of  heresy  and 
were  unwelcome.  The  severe  Presbyterian  held 
such  itinerants  as  Lorenzo  Dow  in  horror,  and 
classed  the  British,  the  Indians,  and  the  Methodists 
together. 

The  first  stores  in  the  country  would  now  have 
the  interest  of  a  museum.  Into  one  place  were 
gathered  for  trade  and  for  barter  dry  -  goods 
and  wafers,  dyestuffs  and  sand,  boxes,  quills,  and 
hardware,  drugs  and  medicines,  boots  and  shoes — 
which  were  neither  rights  nor  lefts — molasses  and 
whiskey;  loaf-sugar  at  three  shillings  a  pound, 
hyson -skin  tea  at  fourteen,  pins  at  two-and-six 
the  paper,  powder  at  eight  shillings  a  pound  and 
shot  at  two,  unbleached  cotton  at  fifty-five  pence 


Const H 111 ioiial  Histoiy  of  the  American  People 

the  yard,  satinet  at  twenty- seven  and  sixpence, 
maccoboy  snuff  at  eight  shilHngs  a  pound,  coffee 
at  five,  writing-paper  at  four  shilHngs  a  quire, 
whiskey  at  twelve  shillings  a  gallon,  Webster's 
spelling-books  at  three  shillings  each,  ginger  at  six 
shillings  a  pound,  flour  at  eighteen  dollars  a  bar- 
rel, salt  at  twenty-two — and  Colonel  Forster  might 
tell  the  purchaser  that,  during  the  six  years  clos- 
ing with  1805,  to  Erie  City  alone  fifteen  thousand 
barrels  had  been  brought  from  Salina,  first  by 
wagon  to  Black  Rock  and  thence  by  the  lake. 
Cheese  stood  at  two  cents  a  pound,  butter  at 
seven,  pork  at  two,  wheat  at  three  shillings  a 
bushel  and  oats  at  one,  calico  at  six-and-six  the 
yard,  and  broadcloth  at  ten  dollars. 

Shoemakers,  tailoresses,  school  -  masters,  pack- 
peddlers,  and  doctors  comprised  almost  the  whole 
of  the  travelling  population.  The  doctor  had 
learned  his  art  in  a  practitioner's  office  "  down 
East."  Patients  were  bled,  purged,  and  buried. 
A  favorite  prescription  of  Dr.  Prendergast*  was 
"  2  oz.  val.  sylv.  and  caskarel  t  and  epispastic,"  for 
which  the  patient  or  his  estate  paid  one  pound 
four  shillinsfs.      The  fever -stricken  were  denied 

O 

water,  but  fed  bounteously  with  calomel ;  the  win- 
dows in  the  sick-room  were  carefully  sealed,  in 
order  to  prevent  draughts.  Frequent  epidemics 
of  small-pox  or  typhus  overran  the  country. 

The  school-master  was  an  incipient  preacher  or 
physician.     In   the  hollow  square  of  the  school- 

*  Of  Fredonia,  New  York.  f  Probably  castor-oil. 


Limited  Curriculum  of  the  Village  School 

room  there  raged  a  perpetual  battle  between  the 
"  master  "  and  the  larger  boys.  The  windows  were 
of  larded  paper,  and  the  puncheon  seats  kept  the 
children's  feet  just  off  the  floor.  Daball's  arith- 
metic, Webster's  spelling-book,  the  English  reader, 
and  quill-pen  copies  constituted  the  material  for 
the  curriculum.  Educational  literature  did  not 
exist.  Seldom  were  two  scholars  in  the  same 
book  or  at  the  same  lesson  ;  children  were  sent  to 
school  to  learn  to  read,  to  write,  and  to  do  sums. 
Schools  were  maintained  by  a  rate-bill,  which  might 
be  diminished  by  boarding  the  teacher.  In  the 
evening  he  was  expected  to  help  the  children  at 
their  sums,  to  amuse  the  household,  and,  later,  to 
sleep  in  a  frosty  bed. 

The  century  was  six  years  old  before  a  court 
was  held  in  Erie.  Judge  Yates,  as  was  the  custom 
among  members  of  the  State  Supreme  Court  at 
that  time,  travelled  over  the  circuit  on  horseback. 
In  Chautauqua  County  the  foreman  and  the 
secretary  of  the  grand  jury  paid  each  a  bottle  of 
brandy  for  the  honor  of  his  seat.  Taverns  were 
thickly  sprinkled  over  the  principal  roads,  and 
tavern -keeping  was  the  most  profitable  business 
in  the  country.  Strange  stories  are  told  about 
some  of  these  taverns,  and  the  tragedy  at  Button's 
Inn  has  gone  into  literature. 

Erie  was  made  a  post-oiTfice  town  in  1798,  and 
the  quarterly  returns  for  April,  1805,  were  sixteen 
dollars  and  twenty -eight  cents.  Between  New 
Amsterdam  (now  Buffalo)  and  Erie  the  road  was 
almost  impassable,  and  the  mail,  at  regular  inter- 

223 


Constitutional  History  of  the  American  Teople 

vals,  was  carried  in  a  handkerchief  by  a  horse- 
man. Two  years  later — 1807 — mails  once  a  fort- 
night between  Erie  and  Buffalo  were  carried  by 
a  horseman  for  one  hundred  and  forty  dollars  a 
year.  In  181 1,  John  Gray  agreed  to  carry  the 
mail  from  Buffalo  to  Cleveland,  once  in  two  weeks, 
for  three  years,  at  nine  hundred  and  fifty  dollars  a 
year.  To-day  these  cities  are  six  hours  apart  and 
correspond  by  a  dozen  mails  a  day. 

Five  years  were  to  pass  before  Meadville,  Oil 
Creek,  Warren,  and  IMayville  were  included  in  a 
mail  -  route.  The  first  quarter  of  a  century  was 
over  before  a  daily  stage -line  ran  from  Erie  to 
Buffalo.  Often  at  dead  of  night  the  farmer  was 
aroused  to  help  the  immigrant,  or  Colonel  Bird's 
carry-all,  out  of  the  sink-hole  in  the  Buffalo  road.* 
Travel  by  stage  was  considered  peculiarly  danger- 
ous. The  fare  by  day,  in  summer,  was  four  cents 
a  mile;  in  winter  the  roads  were  closed. 

In  the  farm-houses  there  were  no  children's  books, 
no  toys,  no  games,  no  pictures,  no  musical  instru- 
ments. The  business  of  life  was  to  work.  Each 
household  was  a  self-sustaining  colony — a  New 
England  in  miniature.  Many  years  passed  before 
planted  orchards  bore  sufficient  fruit  to  make  un- 
necessary the  autumnal  gathering  of  wild  apples, 
fox-grapes,  and  wild  plums.  The  boys  gathered  am- 
ple harvests  of  beechnuts,  butternuts,  walnuts,  and 
chestnuts ;  the  girls  made  stores  of  dried  pump- 

*  Travellers  agreed  that  one  of  the  worst  was  just  west  of 
"The  Gulf,"  or  Twenty -mile  Creek,  near  the  State  line — New 
York  and  Pennsylvania. 

224 


An  Aristocracy  of  IVealth 

kins  and  dried  apples.  Apple-bees,  husking-bees, 
and  quilting-bees  were  a  laborious  recreation.  In 
summer  might  be  seen  an  occasional  posy-bed  of 
moss -pinks,  marigolds,  poppies,  lavender,  balm, 
sweet-williams,  and  summer- savory.  Near  the 
door  grew  lilacs,  hollyhocks,  and  caraway. 

In  religion,  nearly  all  were  Calvinists ;  in  poli- 
tics, those  from  the  East  were  Federalists ;  those 
from  the  South,  Democratic  -  Republicans.  But 
religion  was  of  far  deeper  interest  to  them  than 
politics.  They  knew  little  of  the  State  Legis- 
lature and  less  of  Congress.  The  ideas  now 
embodied  in  the  word  nation  never  occurred  to 
them.  Life  was  a  serious  business.  They  had 
little  time  to  speculate ;  their  wants  were  press- 
ing and  immediate.  In  1810  the  entire  coun- 
try from  Buffalo  to  Detroit,  that  now  has  a  pop- 
ulation of  more  than  a  million,  did  not  have  five 
thousand. 

Along  the  frontier,  distinctions  in  social  rank 
were  drawn  according  to  rules  unknown  in  the 
East.  Birth  counted  for  little ;  wealth  levelled  all 
other  distinctions.  The  struggle  for  existence 
strengthened  individualism.  Isolated  settlements, 
such  as  the  older  towns  in  the  West  were  at  first, 
developed  a  unique  aristocracy  largely  composed 
of  the  families  of  the  more  prosperous  tanners, 
lumbermen,  and  farmers,  with  a  few  surveyors  and 
civil  functionaries,  of  whom  the  postmaster  and 
the  squire  were  easily  first.  The  event  of  the 
year  was  training-day,  when  the  raw  youth  of  the 
district  tried  their  best  to  understand  the  noises 
I. — p  225 


Coiistitittional  History  of  the  American  People 

hurled  at  them  by  their  comnianding  officers.  It 
was  thought  to  be  a  military  age,  and  easily  ran  to 
militia  titles.  Who  in  middle  life  to-day  does  not 
remember  some  large  citizen  of  the  days  of  his 
childhood  who  was  the  colonel  or  the  captain — 
not  merely  a  colonel  or  a  captain,  as  in  later 
years.  As  each  militia  company  elected  its  of- 
ficers, titles  did  not  easily  run  out.  In  our  day 
men  find  employment  for  their  surplus  social  en- 
ergies in  belonging  to  countless  societies,  lodges, 
and  associations,  and  such  membership  ignores 
distance.  The  man  who  now  has  a  lodge-night  six 
times  a  week,  had  he  lived  then,  would  have  been 
forced  to  concentrate  his  social  dissipation  upon 
general  musters,  election  days,  and  religious  meet- 
ings. 

In  the  West  and  Southwest  it  was  easier  and 
more  profitable  to  transport  whiskey  than  corn. 
The  federal  collectors  hardly  ventured  over  the 
mountains,  and  a  licensed  still  was  unknown. 
Drunkenness  was  the  prevailing  evil  of  the  times. 
A  grocery -store  was  usually  a  liquor -store.  In 
the  Northwest  some  families  held  slaves,  in  the 
early  part  of  the  century,  in  spite  of  the  great  Or- 
dinance, and  a  greater  number  had  colored  ser- 
vants, who,  though  free  by  the  law,  were  members 
of  the  household  and  received  no  wages.  In  ten 
years  population  overspread  the  greater  part  of 
Ohio  and  Tennessee,  crossed  the  Indiana  border 
in  the  Southeast,  and  began  to  appear  along  the 
northern  bank  of  the  river;  but  the  Indian  coun- 
try began  below  the  latitude  of  Indianapolis  and 

226 


The  Purchase  of  Loinsiana 

Springfield.  Emigration  from  South  Carolina  and 
Georgia  was  checked  by  the  Creeks  and  Chero- 
kees ;  and  the  Chickasaws,  and  the  lesser  but 
equally  fierce  tribes,  held  back  the  people  of 
Tennessee  and  Kentucky  from  the  rich  bottom- 
lands of  Mississippi.  Nineteen  in  twenty  of  the 
population  lived  in  the  country.  Nineteen  in  a 
hundred  were  negroes,  living  almost  wholly  south 
and  southwest  of  Pennsylvania. 

Before  the  westernmost  advance  of  population 
reached  the  Mississippi,  Louisiana  was  purchased 
from  Napoleon,  In  1800  it  had  been  conveyed 
to  France  by  Spain,  in  a  secret  article  of  the  treaty 
of  San  Ildefonso,  without  definition  of  boundaries. 
Jefferson  made  public  the  purchase  on  the  21st 
of  October,  the  three  hundred  and  eleventh  anni- 
versary of  the  discovery  of  America.  Marshall 
spoke  of  the  treaty  as  one  of "  studied  ambiguity." 
It  contained  one  article  which,  as  it  came  to  be 
administered,  proved  a  sweeping  clause.  The  in- 
habitants, as  soon  as  possible,  were  to  be  incorpo- 
rated in  the  Union,  "according  to  the  principles 
of  the  federal  Constitution,"  and,  meantime,  were 
to  be  protected  in  the  enjoyment  of  their  "  liberty, 
property,  and  religion."  At  once  it  was  claimed 
that  "property"  included  slaves,  and  that  the 
treaty,  according  to  the  Constitution,  was  a  part 
of  the  supreme  law  of  the  land.  However  slight 
as  yet  might  be  respect  for  the  federal  govern- 
ment, it  was  a  guarantor  of  slavery,  and  there- 
fore entitled  to  some  allegiance.  The  clause  in 
the   treaty  proved  before  many  years   to   be  one 

227 


Constitutional  History  of  the  American  People 

of  momentous  interpretation  of  the  functions  of 
the  general  government.  It  was  one  of  the  first 
epoch-making  measures  of  the  century.  Before 
the  century  closed,  the  Louisiana  country  was  to 
consist  of  fifteen  commonwealths,  and  their  consti- 
tutions and  laws  were  to  be  strongly  influenced 
by  the  issues  germinant  in  this  article.  Congress 
speedily  erected  the  Territories  of  Orleans  and 
Louisiana,  specially  providing  that  federal  laws 
respecting  the  slave-trade  and  fugitives  from  jus- 
tice should  be  in  force  in  them. 

The  purchase  of  Louisiana  changed  the  history 
of  the  United  States.  As  long  as  the  Mississippi 
remained  the  western  boundary  of  the  country, 
the  North  and  the  South  were  conventionally, 
if  not  economically,  equal  forces  in  government. 
The  new  acquisition  suddenly  and  permanently 
chang:ed  old  relations.  The  area  of  the  United 
States  now  became  about  two  million  square 
miles,  of  which  by  far  the  greater  portion  lay 
north  of  the  latitude  of  36'  30'.  Orleans  touched 
the  Spanish  possessions,  and  was  the  westernmost 
extension  of  slavery.  In  the  far  Northwest  the 
Louisiana  country  joined  Oregon,  and  thus  the 
United  States  extended  from  the  Atlantic  to  the 
Pacific.  West  of  the  free  States  there  thus  sud- 
denly opened  up  an  almost  unlimited  opportunity 
for  the  extension  of  free  institutions.  A  conflict 
between  slavery  and  freedom  for  its  control  was 
inevitable.  All  the  energies  of  the  country,  so- 
cial, economic,  and  political,  were  soon  marshalled 
on  one  side  or  the  other.     The  contest  between 


Provision  for  Public  Education 

freedom  and  slavery,  hitherto  obscure,  was  from 
this  time  carried  on  with  increasing  fierceness 
for  sixty  years. 

In  1802  Congress  authorized  the  people  living 
in  "  the  eastern  division  of  the  Territory  north- 
west of  the  river  Ohio  "  to  form  a  State  sfovern- 

o 

ment.  Only  taxpayers  who  were  citizens  of  the 
United  States  and  residents  of  the  Territory  for 
one  year  were  allowed  to  vote  for  members  of  the 
convention.  Congress  empowered  the  delegates  to 
accept  or  reject  its  offer  of  every  sixteenth  section 
of  land  in  every  township  for  the  use  of  schools, 
and  the  reservation  of  certain  military  lands  and 
salt-springs  for  the  use  of  the  State.  The  lands 
thus  set  apart  for  the  support  of  schools  com- 
prised, in  the  aggregate,  an  area  greater  than  half 
the  State  of  Connecticut.  No  provision  of  the 
kind  could  have  been  made  in  Kentucky,  Tennes- 
see, or  Mississippi.  There  Congress  never  had 
title  to  the  land.  Large  portions  of  the  Missis- 
sippi Territory  were  in  private  ownership  before 
it  came  fully  under  federal  control.  The  two  sec- 
tions of  the  West,  the  northern  and  the  southern, 
thus  began  with  unequal  facilities  for  public  edu- 
cation. The  difference  was  largely  temperamental, 
and  characteristic  of  their  populations.  The 
Eastern  habits  of  the  people  of  Ohio  could  not  be 
shaken  off.  Though  the  majority  of  the  settlers 
were  unlearned  men,  there  were  few  illiterates, 
and  none  who  did  not  wish  their  children  to  have 
an  opportunity  to  attend  school.  The  spirit  of 
the  people  dictated  the  provision  in  the  constitu- 

229 


Constitutional  History  of  the  American  People 

tion  of  1803  forbidding  the  Legislature  to  enact 
laws  that  would  prevent  the  poor  from  an  equal 
participation  with  the  rich  in  the  schools,  acade- 
mies, colleges,  and  universities  in  the  State  en- 
dowed in  whole  or  in  part  with  the  revenue  aris- 
ing from  the  school -lands  granted  by  the  United 
States.  No  distinction  or  preference  in  the  re- 
ception of  students  and  teachers  should  ever  pre- 
vail in  these  institutions.  Congress  thus  began  a 
new  policy,  by  which  public  education  became  an 
essential  part  of  commonwealth  organization.  It 
was  followed  in  the  enabling  acts  for  later  North- 
ern States,  and  led  eventually  to  provisions  for 
education  in  their  constitutions.  From  the  day 
Ohio  was  admitted,  and  largely  because  of  its 
generous  equipment  for  public  education,  began  a 
new  concept  of  the  functions  of  an  American  com- 
monwealth. The  provisions  for  public  institu- 
tions of  learning  were  the  first  and  the  principal 
cause  of  a  change  in  the  popular  idea  of  the 
State.  From  this  time  the  State  had  the  gift  of 
education  in  its  hands,  and  the  public  began  to 
look  to  the  State  to  do  things  which  had  before 
been  done  by  individuals  or  not  at  all.  Educa- 
tion at  the  expense  of  the  State  meant  the  down- 
fall of  discordant  individualism.  A  beginning  was 
made  in  the  education  of  the  masses,  in  a  common 
school-system.  It  is  impossible  fully  to  estimate 
the  importance  of  education  in  a  democracy.  The 
educational  grant  to  Ohio  was,  in  all  its  aspects, 
the  first  of  the  kind  in  history. 

Responsive  to  movements  of  population,  Con- 

230 


The  Formation  of  Territories 

gress  in  1805  organized  Michigan  from  the  In- 
diana Territory,  with  Detroit  as  the  capital,  and, 
four  years  later,  again  divided  Indiana,  calling  the 
new  Territory  Illinois,  and  making  Kaskaskia  its 
capital.  The  northern  peninsula  remained  part  of 
Indiana.  Georgia,  in  1802,  ceded  to  the  United 
States  the  lands  between  her  western  boundary 
and  the  Mississippi,  for  which  she  received  one 
and  a  quarter  millions  of  dollars  and  the  obliga- 
tion of  the  United  States  to  extinguish  the  Indian 
titles  within  the  State.  The  Mississippi  Terri- 
tory, which  at  first  was  a  narrow  strip  along  the 
boundary  of  West  Florida,  was  now  extended  to 
Tennessee,  with  promise  of  admission  into  the 
Union  at  the  discretion  of  Congress.  The  act  or- 
ganizing the  Territory  guaranteed  slavery.  White 
men  above  the  age  of  twenty-five,  citizens  of  the 
United  States  and  residents  of  Mississippi  one 
year,  owning  fifty  acres  of  land  and  a  town  lot  of 
the  value  of  one  hundred  dollars  in  the  Territory, 
were  allowed  to  vote.  This  property  qualifica- 
tion, in  contrast  with  manhood  suffrage  in  the 
Northwest,  was  in  keeping  with  precedent  in 
most  of  the  States. 

The  white  race  was  now  increasing  relatively 
faster  than  the  black.  Cities  were  multiplying  in 
number,  but  not  in  their  proportion  of  the  popula- 
tion. They  were  centres  of  trade  and  litigation, 
but  manufactures  and  towns  were  not  yet  synony- 
mous terms.  The  aee  of  factories  beo^an  after  the 
second  war  with  England.  As  population  became 
denser  in  the  older  regions  of  the  country  the  press- 


Coiislitiiiional  History  of  the  American  People 

ure  westward  found  voice  in  a  common  demand  for 
more  land.  The  pioneer  was  treading  on  the  heels 
of  the  Indian. 

Two  Indian  wars  broke  out  almost  at  the  same 
time — with  a  confederation  of  tribes  in  the  North- 
west, with  the  Creeks  and  Seminoles  of  the  South- 
west, constituting,  as  the  people  of  the  West  thought, 
the  principal  part  of  the  war  of  1812.  They  would 
have  broken  out  had  that  war  never  occurred.  The 
wave  of  population  was  dashing  against  Indian  bar- 
riers, and  there  could  be  only  one  result.  Immigra- 
tion westward  had  now  overrun  what  were  thought 
to  be  the  best  lands  made  accessible  by  Wayne's 
treaty  of  1795.  Twenty  years  had  passed.  A  new 
generation  demanded  cheap  lands. 

Hundreds  of  battles  have  been  fought,  surpass- 
ing in  fierceness,  and  in  the  number  and  the  skill 
of  participants,  the  battle  of  Tippecanoe.  Yet 
because  of  its  effects  on  the  development  of  the 
West  it  lingers  in  the  memory  of  the  people  like 
Lexington  and  Fort  Sumter.  Another  Pontiac 
had  planned  to  sweep  the  whites  from  the  North- 
west. Tecumseh,  and  his  brother  The  Prophet, 
had  conceived  a  more  daring  plot — to  unite  all 
the  tribes.  North  and  South,  and  swoop  down 
upon  the  settlements  at  one  time.  Harrison's 
victory  gave  the  Northwest  to  new  settlers.  For 
the  settler  in  the  Southwest  Jackson  performed 
a  similar  service.  His  campaigns  left  a  trail  of 
Indian  blood.  Henceforth  no  tribe  dared  com- 
mit hostilities  east  of  the  great  river.  Harrison 
and   Jackson    had   won    a   popularity    surpassing 

232 


SHOWING  CIVIL  DIVISIONS 
.AND  DISTRIBUTION  OF  POPULATION 


The  Indian  Wars 

that  of  Washington  or  Franklin.  When  the  war 
of  1812  was  over,  and  the  treaty  of  Ghent  was 
signed,  and  the  country  could  calmly  reflect  on 
its  gains  and  losses,  the  victories  of  Harrison  and 
Jackson,  which  opened  the  West  to  settlement, 
outweighed,  in  the  opinion  of  the  people  living  in 
the  great  valley,  all  the  victories  of  the  Americans 
on  the  sea.  The  popularity  of  the  two  soldiers 
took  deep  root  in  public  sentiment,  and,  growing 
stronger  as  the  years  displayed  prosperous  com- 
monwealths as  the  fruit  of  their  victories,  at  last 
culminated  in  the  election  of  the  "  Hero  of  New 
Orleans,"  and,  later,  the  "  Hero  of  Tippecanoe,"* 
to  the  Presidency. 

By  a  provision  of  the  national  Constitution,  a 
census  of  the  people  is  taken  every  ten  years.  The 
movement  of  the  frontier  westward  has  thus  been 
regularly  recorded.  Its  position  from  decade  to 
decade  suggests  the  waves  of  some  mighty  sea,  each 
in  succession  leaping  further  to  the  West.  Every 
wave  has  ingulfed  once  powerful  tribes.  From 
frontier  to  frontier  stretches  a  succession  of  battle- 
fields. Each  decade  has  had  its  Indian  wars,  its 
victories,  and  its  popular  heroes.  Harrison  and 
Jackson  were  the  first  of  their  kind.  Within  ten 
years  of  their  victories,  the  West  stretched  far 
away  beyond  the  Mississippi ;  many  of  the  tribes 
with  whom  they  fought  were  transferred  to  the 
Indian  country,  and  an  ample  region  east  of  the 


*  For  typical  resolutions  on  General  Harrison,  see  those  of  the 
Kentucky  Legislature,  January  13,  181 2. 


Cousin  lit  ioual  Hisloiy  of  the  American  People 

river  was  opened  to  peaceful  settlement.  Popula- 
tion continued  to  converge  upon  St.  Louis,  even 
after  these  victories  on  the  Thames  and  the  Ala- 
bama. Within  five  years  of  the  battle  of  Tippe- 
canoe, a  population  poured  into  Indiana  sufficient 
to  ask  for  admission  as  a  State.  Congress  made 
a  grant  of  school-lands  equally  generous  with  that 
to  Ohio,  and  appropriated  an  entire  township  ex- 
clusively for  the  support  of  higher  education  in 
"a  seminary  for  learning" — the  beginning  of  ap- 
propriations of  land  for  State  universities.  Like 
the  offer  to  Ohio,  this  one  to  Indiana  was  subject 
to  the  will  of  the  convention.  The  constitution 
adopted  was  the  first  in  the  country  to  make  it 
obligatory  on  the  Legislature  "  to  provide  by  law 
for  a  general  system  of  education,  ascending  in 
a  regular  graduation  from  township  schools  to  a 
State  university,  wherein  tuition  shall  be  gratis, 
and  equally  open  to  all." 

In  1817  the  Territory  of  Mississippi  was  divided. 
The  eastern  portion  was  organized  as  the  Terri- 
tory of  Alabama,  and  the  people  of  the  western 
portion  were  authorized  to  form  a  State  govern- 
ment—  republican  in  form,  and  complying  with 
that  part  of  the  Ordinance  of  1787  applicable  to 
the  Southwest.  This  meant  a  slave  constitution. 
The  free  navigation  of  the  Mississippi  was  guar- 
anteed to  all  the  inhabitants  of  the  United  States. 
The  State  was  admitted  on  the  loth  of  Decem- 
ber. Two  years  and  a  day  later  Alabama  was  ad- 
mitted on  the  same  terms.  In  this  State  school- 
lands  were  reserved  as  in  Ohio. 

234 


Forebodings  of  the  Struggle  for  Secession 

Similar  civil  changes  had  meanwhile  gone  on 
in  the  Northwest.  In  1818  the  people  of  Illinois 
were  authorized  to  form  a  constitution.  A  land- 
grant  was  made  like  that  to  Indiana.  The  portion 
of  the  Territory  north  of  the  present  boundary  was 
attached  to  Michigan.  On  the  3d  of  December 
the  State  was  admitted.  Thus  the  four  new  States 
came  into  the  Union  in  pairs^Indiana  and  Mis- 
sissippi, Illinois  and  Alabama. 

Within  five  years  from  the  organization  of  the 
Territory  of  Orleans  its  people  asked  for  admis- 
sion, and  Congress  acceded  by  passing  an  enabling 
act  in  181 1.  The  conditions  imposed  on  Missis- 
sippi and  Alabama  were  renewed  and  complied 
with,  and  the  State  of  Louisiana  admitted  on  the 
eighth  day  of  April  following.  It  was  the  first 
State  in  the  recent  acquisition,  and  its  admission 
precipitated  an  ominous  debate,  in  which  there 
were  strong  assertions  of  State  sovereignty  and 
some  mutterings  of  secession.  A  few  days  later 
all  territory  north  of  the  new  State  was  organized 
as  Missouri.  Its  Territorial  government  was  more 
liberal  than  that  given  to  the  Northwest  twenty- 
five  years  before.  Members  of  the  House  were 
required  to  be  freeholders — a  qualification  which, 
in  practice,  though  not  by  law,  was  exacted  of  the 
Territorial  officials  generally.  After  18 16  the  ses- 
sions of  the  Legislature  were  made  biennial — an  in- 
novation in  Territorial  matters. 

The  people  of  the  nine  counties  of  Massachusetts 
constituting  the  District  of  Maine  had  been  agitat- 
ing separation  for  several  years,  when,  in  18 16,  de- 

23s 


Const  it  lit  ional  Histoiy  of  the  American  People 

sire  took  the  form  of  a  convention,  which  assem- 
bled on  September  29th,  at  Brunswick.  Most  of 
the  Federalists  were  opposed  to  separation.  Three 
years  of  political  agitation  followed ;  Massachusetts 
assented  to  separation;  a  convention  assembled  at 
Portland  and  submitted  a  constitution  to  the  elec- 
tors of  Maine.  It  was  ratified,  was  approved  by 
Massachusetts,  and  on  the  3d  of  March,  1820,  the 
State  was  admitted. 

While  the  people  in  the  Northwest  were  making 
these  changes,  those  in  the  Southwest  were  similar- 
ly engaged.  Congress  organized  the  Territory  of 
Arkansas  in  18 19,  with  a  government  like  that  of 
Missouri.  To  induce  immigration,  bounty  lands 
for  military  service  during  the  war  of  18 12  which 
were  still  held  by  the  original  patentees  or  their 
heirs,  were  exempted  from  taxation  for  three  years 
from  date  of  issue.  The  laws  of  Missouri  were  ex- 
tended over  Arkansas. 

Georgia,  Alabama,  Mississippi,  and  Louisiana 
had  long  been  complaining  of  the  escape  of  run- 
away slaves  into  the  Floridas.  Partly  because  of 
the  weakness  of  Spain,  but  principally  in  compli- 
ance with  the  wishes  of  the  pro-slavery  element  in 
the  Union,  Congress  early  in  181 1  passed  a  res- 
olution that  the  United  States  could  not,  without 
serious  disquietude,  see  any  part  of  the  Floridas 
pass  into  the  hands  of  a  foreign  power,  and  on  the 
same  day  authorized  the  President  to  take  posses- 
sion of  East  Florida.  A  month  later  it  authorized 
him  to  take  possession  of  West  Florida.  Though 
the  peninsula  was  thus  converted  into  a  military 

236 


Spain  Sells  Florida 

possession  of  the  United  States,  Congress  declared 
that  it  should  be  subject  to  future  negotiation.  No 
act  of  Congress  was  ever  more  popular  along  the 
Southern  frontier  than  this  one.  Remonstrance 
by  Spain  was  useless.  It  could  do  no  more  than 
sell  a  possession  already  practically  in  permanent 
military  possession  of  the  United  States.  On  the 
twenty-second  day  of  February,  1819,  a  treaty  was 
made  by  which  Spain  relinquished  all  claim  to  the 
Floridas  and  to  the  Louisiana  country.  The  con- 
sideration was  five  millions  of  dollars  and  the  as- 
sumption of  certain  claims,  which  proved  event- 
ually to  amount  to  a  million  and  a  half  more.  It 
was  this  treaty  that  defined  the  western  boundaries 
of  the  Louisiana  country ;  but  influences  were  al- 
ready at  work  which,  in  a  quarter  of  a  centur}^ 
left  the  sea- coast  of  Florida  the  only  part  of  our 
national  boundary  fixed  by  this  treaty.  Portions 
of  it  now  constitute  the  boundaries,  in  part,  of 
thirteen  commonwealths. 

St.  Louis,  the  principal  city  on  the  Mississippi, 
lay  at  the  confluence  of  streams  of  population 
from  the  East.  Before  the  Territory  of  Missouri 
was  in  its  eighth  year  its  people  were  seeking  ad- 
mission. On  the  6th  of  March,  1820,  Congress 
passed  an  enabling  act,  with  a  more  generous 
grant  of  lands  for  school  purposes  than  that  made 
to  Indiana.  Four  sections  were  granted  as  a  site 
for  the  seat  of  government — the  first  grant  of  the 
kind.  A  condition  found  in  later  enabling  acts 
was  for  the  first  time  imposed — that  the  constitu- 
tion of  the  State  be  republican  in  form,  "  and  not 

237 


Const  it  iifioiial  History  of  the  American  People 

repugnant  to  the  Constitution  of  the  United 
States."  It  was  with  the  latter  part  of  this  con- 
dition that  the  Missouri  constitution  conflicted 
and  for  a  time  delayed  the  admission  of  the  State. 
For  the  first  time  the  question  was  raised  whether 
slavery  should  be  permitted  west  of  the  Missis- 
sippi and  north  of  Louisiana.  It  was  settled  by 
applying  the  sixth  article  of  the  Ordinance  of 
1787  to  the  portion  north  of  36°  30',  and  admitting 
Missouri  with  a  pro-slavery  constitution.*  As  orig- 
inally defined,  the  western  boundary  of  the  State 
was  a  meridian  line,  and  did  not  include  the  tri- 
angle in  the  northwest,  about  equal  in  area  to 
Delaware.  This  was  annexed  to  Missouri  in 
1836,  in  defiance  of  the  compromise  of  1820. 

With  the  organization  of  the  Territory  of  Flor- 
ida, in  1822,  the  public  domain  passed  wholly  into 
the  hands  of  civil  authority.  In  less  than  forty 
years  from  the  day  when  the  independence  of  the 
United  States  was  recognized,  population  had 
overspread  more  than  a  thousand  miles  of  the 
Western  country.  Nine  commonwealths  had  arisen 
in  a  region  which,  in  1 781,  was  in  the  possession 
of  hostile  tribes.  The  West  was  now  greater  than 
the  East.  New  issues  had  arisen  in  the  nation. 
New  States  and  old  were  confronted  by  new 
social  and  economic  problems,  in  the  settlement 

*  On  the  26th  of  June,  1821,  by  a  "solemn  public  act,"  the 
Missouri  Legislature  complied  with  the  conditions  of  the  en- 
abling act,  that  the  objectionable  clauses  in  the  State  constitu- 
tion should  never  be  construed  so  as  to  violate  rights  guaranteed 
by  the  Constitution  of  the  United  States. 

238 


The  Domination  of  Western  Ideas 

of  which  the  constitutions  of  the  eighteenth  century 
gave  Httle  help.  Consequently  the  constitutions 
of  the  new  commonwealths  contained  innovations, 
chief  of  which  were  changes  in  the  basis  of  rep- 
resentation, in  the  franchise,  in  the  method  of 
securing  public  oflficials,  in  provisions  for  public 
schools,  colleges,  and  universities,  and  in  the  dis- 
tribution of  the  functions  of  government  among 
the  departments.  The  constitutions,  like  the 
people  of  the  new  States,  were  more  democratic 
in  character  than  those  of  the  East.  The  new 
organic  laws  of  the  West  were  a  wave  of  consti- 
tutions. Those  of  the  eighteenth  century  com- 
prised the  first,  these  the  second,  on  the  great  sea 
of  American  democracy.  The  influence  of  ideas 
dominant  in  the  West  was  reflected  and  felt  in 
New  York  and  Massachusetts,  in  Connecticut  and 
New  Jersey,  in  Maryland  and  Georgia.  These 
older  States  were  discussing,  if  not  adopting,  re- 
forms in  the  basis  and  the  apportionment  of  rep- 
resentation, reforms  in  the  franchise,  and,  to  a 
less  extent,  in  the  organization  of  the  adminis- 
trative, or,  as  it  may  now  be  called,  the  civil  ser- 
vice. Government  by  property  was  giving  place 
to  government  by  persons. 


CHAPTER  IX 
FROM   THE  ALLEGHANIES   TO  THE  MISSISSIPPI 

At  the  opening  of  the  new  century  the  frontier 
advancing  westward  was  along  the  Ohio  River.* 
The  greater  part  of  the  original  States  was  in 
private  ownership.  From  the  shores  of  Ontario 
and  Erie  a  new  zone  of  occupation  extended  south- 
westward  to  the  country  of  the  Creeks  and  Chero- 
kees — a  new  world  of  isolated  settlements,  found 
along  the  great  streams  flowing  into  the  Ohio, 
along  the  south  shore  of  the  two  great  lakes,  and 
in  the  valleys  of  Kentucky  and  Tennessee.  But 
throughout  this  new  region  the  fear  of  straggling 
half-breeds  and  remnants  of  once  powerful  tribes 
made  the  new  West  avast  agricultural  camp.  St. 
Louis  stood  at  the  outpost  of  civilization.  Peace 
with  the  United  States,  France,  and  Spain  con- 
tributed to  make  it  a  centre  of  population  as 
well  as  a  frontier  trading-post.  It  was  the  one 
town  on  the  continent  which  served  the  func- 
tion of  the  middle -man  with  the  people  of  the 
States,  the  French,  Spaniards,  and  Mexicans  on 
the  south,  and  the   unknown    Indian  tribes  of  the 

*  The  principal  authorities  for  this  chapter  are  the  treaties, 
the  statutes  at  large  referred  to,  and  the  meagre  records  of  the 
constitutional  conv^entions. 

240 


The  Control  of  the  Channels  of  Commerce 

yet  undiscovered  West.  It  stood  near  the  con- 
fluence of  the  three  great  rivers  of  the  country — 
the  Ohio,  the  Mississippi,  and  the  Missouri — the 
confluence  also  of  civiHzation  and  savagery.  Three 
hundred  miles  to  the  south,  another  and  an  older 
town,  New  Orleans,  laid  tribute  on  all  that  came 
from  the  upper  country;  and  this  meant  the  sur- 
plus product  of  the  United  States  west  of  the 
Alleghanies.  A  less  discerning  mind  than  Jeffer- 
son's could  see  that  the  fate  of  the  Western  coun- 
try was  in  the  hands  of  New  Orleans.  The  phrase 
"manifest  destiny"  had  not  yet  been  invented  as 
the  apology  for  the  acquisition  of  new  territory, 
but  the  thought  was  embodied  in  Jefferson's  dic- 
tum, that  the  power  possessing  New  Orleans  w^as 
the  natural  enemy  of  the  United  States.  It  was 
a  prescient  idea,  and  one  that  the  wayfaring  man 
might  not  have  expected  to  find  in  a  republic  of 
only  twenty -five  years'  standing,  and  not  with- 
out signs  of  falling.  Why  more  land  when  more 
than  half  the  public  domain  was  yet  a  wilder- 
ness }  Why  the  isle  of  Orleans  when  popula- 
tion had  barely  reached  the  Altamaha,  four  hun- 
dred miles  to  the  east,  or  the  Cumberland,  three 
hundred  to  the  north  }  We  all  know  the  reason — 
it  has  been  written  in  the  history  of  all  nations — 
that  the  power  is  supreme  wdiich  regulates  com- 
merce and  controls  the  highways  of  trade.  Al- 
though the  greater  part  of  the  people  of  the  United 
States  inhabited  the  Atlantic  slope,  the  future  of 
the  republic  did  not  rest  with  them.  More  than 
half  the  country  lay  in  the  valley  of  the  Missis- 
I.— Q  241 


Const  it  lit  ioiial  Histoiy  of  the  American  People 

sippi;  on  this  yet  unoccupied  portion  rested  the 
fate  of  the  Union,  Trade  and  commerce  follow 
lines  of  least  resistance.  The  mountains  which 
divided  the  people  of  the  coast  from  the  people  of 
the  great  valley  might  prove  a  greater  obstacle  to 
"  a  more  perfect  union  "  than  the  delusion  of  fiat 
money  and  the  jealousy  of  the  State  sovereignties 
had  been  at  the  time  of  the  ratification  of  the 
Constitution.  In  the  last  analysis  union  rests  on 
morality  and  industrial  association,  and  the  gen- 
eral welfare  means  a  true  political  economy.  Thus 
the  fate  of  the  republic  depended  on  the  course 
of  streams  and  the  trend  of  mountains,  as  well 
as  on  Congress  and  the  Legislatures.  Had  the 
Rocky  Mountains  run  parallel  with  the  Missis- 
sippi at  twenty  miles  to  the  west,  it  is  doubtful 
whether  the  United  States  would  ever  have  ex- 
tended beyond  its  original  limits  and  the  penin- 
sula of  Florida.  The  acquisition  of  the  Louisiana 
country  ranks  in  importance  with  the  Declaration 
of  Independence — for  it  made  room  for  democracy 
in  America. 

With  nations,  as  with  individuals,  it  is  the  for- 
ward look  that  stimulates.  Too  much  history,  like 
too  much  introspection,  chills  the  spirit  and  crip- 
ples action.  Thus  the  thought  of  an  energetic 
people  is  of  their  outposts  and  frontier,  and  the 
history  of  these  is  the  history  of  civilization.  When 
the  new  century  opened  the  outposts  of  the  re- 
public were  at  Buffalo,  Erie,  Detroit,  Mackinaw, 
Chicago,  Green  Bay,  Prairie  du  Chien,  St.  Louis, 
and   Orleans  —  names,  it  is  true,  seldom  heard  in 

242 


Concerning  the  Cession  of  Louisiana 

the  East  then,  but  to  the  statesmen  of  the  day  the 
subject  of  diplomacy,  the  signs  of  the  times,  the 
vanguard  of  democracy. 

Louisiana  was  ahnost  an  unknown  land.  Not 
until  sixteen  years  after  its  purchase,  when  Florida 
was  acquired,  was  there  even  a  rude  definition 
of  the  boundaries,  for  no  accurate  maps  existed. 
No  man  knew  the  true  course  of  the  Rio  Grande 
or  of  the  Rocky  Mountains,  for  there  were  several 
great  rivers  and  many  mountain  ranges,  any  of 
which  might  be  the  boundary.  Fortunately  for 
the  republic,  the  western  boundaries  were  at  the 
edge  of  the  world,  and  not  likely,  it  was  thought, 
to  raise  diplomatic  questions  for  centuries. 

Of  greater  domestic  interest  were  the  political 
articles  of  the  treaty.  The  United  States  guaranteed 
the  inhabitants  of  Louisiana  the  protection  of  their 
liberty,  property,  and  religion,  and  this  guarantee 
of  property  rights  was  soon  applied  in  a  way  that 
determined  the  real  importance  of  the  acquisition 
and  its  effect  on  the  destiny  of  the  country.  If 
property  included  slaves,  what  was  the  national 
significance  of  the  guarantee  }  What  effect  on  the 
commonwealths  of  the  future }  Was  the  fate  of 
freedom  in  the  States  to  be  formed  within  the 
new  acquisition  to  be  determined  by  the  property 
rights  of  a  few  thousand  people  living  in  Louisiana 
at  the  time  of  the  treaty  ? 

Nor  were  these  the  only  civil  problems  latent  in 
the  acquisition.  What  effect  would  the  great  Or- 
dinance of  178  7  now  have.'*  If  slaves  were  property — 
and,  by  the  treaty,  slavery  was  to  prevail  through- 

243 


Const il lit ioiial  History  of  tljc  American  People 

out  the  Louisiana  country — was  not  the  repubHc 
thereby  converted  forever  into  a  slave-holding  com- 
munity? The  Ordinance  excluded  slavery  from 
the  territory  northwest  of  the  Ohio,  but  at  the 
same  time  included  it  southwest. 

Slavery  did  not  exist  in  New  Hampshire,  Ver- 
mont, and  Massachusetts ;  but  elsewhere,  in  every 
State,  and  in  the  Northwest  Territory,  there  were 
slaves.  By  the  Ordinance  it  became  unlawful  in 
that  Territory  after  1800,  but  the  year  came  and 
went  with  no  change  in  the  condition  of  the  ne- 
groes within  its  boundary.  The  white  people  in 
the  Territory  were  not  enthusiastic  to  apply  the 
Ordinance.  The  year  of  the  acquisition  of  Lou- 
isiana witnessed  the  admission  of  Ohio*  with  a 
constitution  forbidding  slavery,  and  it  also  saw 
the  persistent  efforts  of  the  inhabitants  of  Indiana 
to  persuade  Congress  to  repeal,  or  suspend,  the 
Ordinance.  Their  petition  was  answered  by  the 
unanimous  report  of  the  committee,  of  which  John 
Randolph  was  chairman.  Slave  labor  would  be 
unprofitable  in  the  Northwest ;  slavery  would 
make  the  frontier  less  secure.  But  defeat  did  not 
cause  petitions  to  cease.  In  the  following  year 
another  committee  reported  favorably,  but  the 
House  took  no  action.  Two  years  later  another 
committee  made  a  favorable  report,  on  the  ground 
that  the  repeal  of  the  prohibitory  clause  was 
almost  universally  desired  in  the  Territory;  that 
the    suspension    of    the    clause    would    stimulate 

*  February  19,  1803. 


Slavery  in  the  Northwest  Territory 

immigration,  and  that  slave-owners  would  be  free 
to  move  to  Indiana  if  they  chose.  •  The  suspen- 
sion would  also  improve  the  condition  of  the 
slaves.  The  more  they  were  scattered,  the  better 
care  they  received  from  their  masters,  as  experi- 
ence proved  that  the  comfort  of  slaves  was  in 
proportion  to  the  smallness  of  their  number — an 
argument  to  be  made  much  of  by  Madison,  and  re- 
peated by  the  friends  of  slavery  extension  in  1820. 
The  House,  however,  took  no  action.  Again,  in 
1807,  a  committee  reported  favorably,  and  its  opin- 
ion was  reinforced  by  a  letter  from  William  Henry 
Harrison,  Governor  of  the  Territory.  A  new  argu- 
ment was  presented.  Though  inexpedient  to  force 
the  population  of  the  Territory,  it  was  desirable 
to  connect  its  scattered  settlements,  and  place  it  on 
equal  footing  with  the  different  States.  Indiana 
was  so  far  inland  it  was  improbable  that  slaves 
could  ever  become  so  numerous  as  to  endanger 
the  peace  of  the  country.  The  Territory  should 
be  open  freely  to  the  current  of  immigration.  Sus- 
pension of  the  clause,  it  was  now  claimed,  did  not 
involve  the  abstract  question  of  freedom  or  sla- 
very, because  slavery  existed  in  different  parts  of 
the  Union.  Rather,  the  suspension  would  amelio- 
rate the  condition  of  the  slaves,  because  it  would 
merely  authorize  their  removal  from  other  States. 
But  the  House  took  no  action.  The  Indiana  peti- 
tion came  as  a  resolution  of  the  Territorial  Legis- 
lature. Private  judgment  was  thus  strengthened 
by  the  official  act  of  the  legislative  and  executive. 
In  January,  1808,  the  whole  matter  came  before 

245 


Coiistitiitioihil  Historv  of  the  American  People 

the  Senate,  but  its  committee  reported  the  pro- 
posed change  inexpedient,  and  Congress  took  no 
further  action.  Thus,  by  a  coincidence,  the  terri- 
tory northwest  of  the  Ohio  was  secured  to  freedom 
in  the  year  when,  by  the  terms  of  the  national 
Constitution,  Congress  was  free  to  prohibit  the 
African  slave-trade. 

The  fate  of  the  Indiana  memorial,  settled  five 
years  after  the  acquisition  of  Louisiana,  may  now 
be  said  to  have  been  an  augury  of  the  fate  of 
slavery  in  the  new  domain,  but  there  is  slight  evi- 
dence that  the  action  of  Congress  was  so  con- 
strued at  the  time.  The  name  Louisiana,  then,  as 
now,  was  connected,  in  popular  thought,  with  the 
southernmost  part  of  the  purchase.  There  was 
no  objection  to  the  acquisition  because  of  the  ex- 
tension of  slavery.  Objection  was  of  the  kind  ex- 
pressed in  the  federal  convention  of  1787,  when 
the  contingency  of  new  States  in  the  West  was 
discussed — that  they  would  multiply  and  out-vote 
the  East,  and  therefore  ought  not  to  be  created. 
Moreover,  the  Constitution  made  no  provisions 
for  the  acquisition  of  territory.  These  two  ob- 
jections, involving  questions  of  federal  relations 
rather  than  of  slavery,  engrossed  what  public  at- 
tention was  given  to  the  matter.  The  article  of  the 
treaty  by  which  the  Constitution  of  the  United 
States  was  soon  invoked  as  guaranteeing  the  right 
of  property  in  man,  was  generally  unknown  or 
overlooked.  Was  not  the  acquisition  a  South- 
ern and  Western  question,  after  all }  Quincy  and 
the  New   England  Federalists,  of  course,  object- 

246 


Louisiana  and  Orleans  as  Territories 

ed,*  but  would  the}'  not  object,  as  they  ever  had 
objected,  to  whatever  the  South  and  West  might 
ask  ?  Times  had  changed ;  henceforth  the  West 
should  outweigh  a  black  cockade.  Let  the  Fed- 
eralists remember  that  Jefferson,  the  man  of  the 
people,  was  President.  At  last  the  West  was  to 
have  its  rights,  and  it  gathered  more  fervently 
than  ever  beneath  the  banner  of  that  new  and 
powerful  party  described  by  its  founder  as  "  inclin- 
ing to  the  legislative  powers." 

Ten  days  after  the  treaty  was  proclaimed  Con- 
gress authorized  the  President  to  take  possession 
of  the  new  countr}^  and  it  was  erected  into  two 
Territories — Louisiana  and  Orleans.  The  fugitive- 
slave  law  of  1 793,  and  the  laws  respecting  the  slave- 
trade,  were  specially  mentioned  as  extended  to  the 
new  Territories.  On  the  2d  of  March  Orleans 
was  provided  with  a  permanent  government,  and 
on  the  next  day  Louisiana.  The  form  became 
the  precedent  for  later  Territories  in  the  South. 
Within  five  years  from  the  organization  of  Orleans 
its  population  had  sufificiently  increased  to  au- 
thorize the  formation  of  a  State  government.  By 
the  enabling  act  of  February  20,  181 1,  the  electors 
were  empowered  to  choose  delegates  to  a  constitu- 
tional convention.  Its  work  was  completed  eleven 
months  later.  The  act  prescribed  several  condi- 
tions, suggested  in  part  by  a  clause  in  the  treaty 
of  1803.  The  constitution  should  contain  the 
fundamental  principle  of  civil  and  religious  liberty, 

*  See  Josiah  Quincy's  speech  in  the  House,  January  14,  181 1. 

247 


Const  it  lit  ioiial  History  of  tlv  /American  People 

should  be  republican  in  form,  and  consistent  with 
the  national  Constitution.  Satisfied  with  the  plan 
of  government  submitted,  Congress  admitted  the 
State  on  the  8th  of  April,  and,  six  days  later,  en- 
larged its  boundaries. 

The  greater  part  of  the  Louisiana  purchase  re- 
mained as  yet  unorganized.  To  the  portion  north 
of  the  new  State,  Congress,  on  the  4th  of  June, 
save  a  Territorial  orofanization  and  the  name  Mis- 
souri.  The  government  departed  slightly  from 
precedent  in  prescribing  a  biennial  election  of 
members  of  the  House.  These  were  required  to 
be  freeholders.  In  1816  the  sessions  of  the  Legis- 
lature w^ere  made  biennial — the  first  application  to 
a  Territory  of  a  reform  already  in  progress  in  the 
States.  The  laws  of  Louisiana  were  extended 
over  the  new  Missouri  Territory,  except  any  parts 
of  them  inconsistent  with  the  act  creating  the 
Territory.  Thus  the  early  legislation  of  Missouri 
was,  in  part,  ingrafted  on  the  civil  law. 

Georgia  had  recently  ceded  to  the  United  States 
all  the  region  west  of  her  present  boundary — the 
result  of  an  amicable  agreement  between  the  State 
and  national  commissioners,  ratified  on  the  i6th 
of  June,  1802.*  The  United  States  agreed  to  pay 
one  and  a  quarter  millions  of  dollars,  and  also  to 
extinguish  the  Indian  title  within  the  State  and 
over  the  greater  portion  of  the  ceded  area.  The 
new  Territory  was  to  be  admitted  as  a  State  as  soon 

*  For  papers  respecting  this  cession,  see  Donaldson's  Public 
Domain,  pp.  79-81.  Forty-seventh  Congress,  second  session; 
House  of  Representatives,  Miscellaneous  Document  45,  Part  4. 

248 


The  Progress  of  State- Making 

as  it  contained  sixty  thousand  people,  or  sooner, 
if  Congress  thought  expedient,  and  the  United 
States  agreed  that  the  Ordinance  of  1787  should 
apply  to  it,  except  the  article  forbidding  slavery. 
This  cession  enabled  Congress  to  extend  the  Terri- 
tory of  Mississippi  northward  to  the  Tennessee 
line.  The  right  to  vote  was  limited  to  free  white 
males  above  the  age  of  twenty-five,  citizens  of  the 
United  States  who  were  residents  of  the  Territory 
one  year,  provided  they  owned  fifty  acres  of  land 
in  the  United  States,  or  a  town  lot  worth  one 
thousand  dollars  within  the  Territory. 

Indiana  was  divided  in  1805,  and  to  the  por- 
tion comprising  the  southern  peninsula  the  name 
Michigan  was  given,  with  Detroit  as  the  capital. 
Again,  four  years  later,  the  Territory  was  divided, 
and  the  western  part,  with  capital  at  Kaskaskia, 
was  called  Illinois. 

Indiana  now  sought  admission,  and  on  the  19th 
of  April,  181 6,  Congress  authorized  its  people  to 
elect  delegates  to  a  constitutional  convention,  lim- 
iting the  choice  to  white  male  citizens  of  the  United 
States,  residents  of  the  Territory  for  one  year,  who 
had  paid  a  county  or  Territorial  tax.  On  the  29th 
of  June  of  the  following  year  this  convention  as- 
sembled at  Corydon,  and  completed  a  constitution, 
which  was  ratified  by  the  electors  and  approved 
by  Congress.  On  the  nth  of  December  the 
State  was  admitted. 

In  18 1 2  the  Territory  of  Mississippi  was  en- 
larged so  as  to  include  the  region  east  of  the 
Pearl  River,  west  of  the  Perdido,  and  south  to  the 

249 


Coiisiilittioihil  History  of  the  American  People 

thirty-first  degree  of  latitude.  Within  five  years 
the  inhabitants  applied  for  admission.  On  the  ist 
of  March,  1817,  Congress  passed  the  act  neces- 
sary for  admission,  and  the  electors  in  the  thirteen 
counties  chose  forty -eight  delegates,  who  assem- 
bled at  Washington,  and,  after  six  weeks'  labor, 
completed  a  constitution.  Under  this  the  State 
was  admitted,  on  the  loth  of  December.  A  con- 
dition of  the  enabling  act  required  the  constitu- 
tion to  be  republican  in  form,  and  in  conformity 
with  as  much  of  the  Ordinance  of  1787  as  was 
applicable  to  the  Southwest.  The  establishment 
of  slavery  was,  therefore,  a  condition  of  admission. 
An  enabling  act  for  Illinois  passed  Congress  on 
the  18th  of  April,  181 8;  a  constitutional  conven- 
tion met  at  Kaskaskia  on  the  26th  of  August,  and 
its  work  was  approved  by  the  electors  and  by 
Congress.  By  resolution,  the  State  was  admitted 
on  the  3d  of  December. 

Alabama  had  long  been  a  land  of  promise 
when,  in  181 7,  it  was  created  a  Territory.  It  was 
a  fair  and  fertile  country,  in  which  the  United 
States  had  guaranteed  to  extinguish  the  Indian 
title.  A  tide  of  immigration  poured  in  from  the 
adjoining  States,  especially  from  Tennessee  and 
Kentucky.  In  two  years  its  people  sought  admis- 
sion to  the  Union,  and  Congress  responded  by 
the  act  of  the  2d  of  March,  18 19,  authorizing  them 
to  form  a  constitution  and  State  government  sub- 
ject to  the  condition  imposed  on  Mississippi  with 
respect  to  the  Ordinance  of  1787.  The  constitu- 
tional convention  completed  its  work  on  the   2d 

250 


Extension  of  the  Ordinance  of  lySy 

of  August.  On  the  14th  of  December,  Alabama 
became  the  twenty -second  State  in  the  Union, 
with  the  suggestive  distinction  of  having  been  a 
Territory  for  a  briefer  period  than  any  other 
American  commonwealth. 

Arkansas  was  given  a  Territorial  organization 
in  1 8 19,  after  the  form  of  that  of  Missouri.  As 
an  inducement  to  immigration,  and  in  response 
to  public  sentiment  in  the  South,  bounty  lands 
granted  within  the  Territory  for  military  services 
during  the  war  of  181 2,  and  still  held  by  the  orig- 
inal patentees  or  their  heirs,  were  exempted  from 
taxation  for  three  years  from  date  of  the  patent. 
In  1820  the  chansres  in  the  form  of  the  Missouri 
government  were  declared  by  Congress  to  apply 
equally  to  Arkansas. 

The  enabling  act  for  Missouri  passed  on  the 
6th  o^  March,  1820,  and  a  constitutional  conven- 
tion was  elected  early  in  May.  Congress  im- 
posed the  usual  conditions — that  the  new  consti- 
tution be  republican  in  form  and  not  repugnant 
to  the  Constitution  of  the  United  States,  but  the 
last  section  of  the  enabling  act  prescribed  a  new 
condition,  destined  to  become  epoch-making  in 
the  history  of  the  country.  In  all  that  Territory 
ceded  by  France  lying  north  of  36°  30',  not  in- 
cluded within  the  limits  of  the  proposed  State  of 
Missouri,  slavery,  or  involuntary  servitude,  other 
than  as  a  punishment  for  crime,  was  forever  pro- 
hibited, but  fugitive  slaves  found  there  might  be 
lawfully  reclaimed.  Thus  the  Ordinance  of  1787, 
as  applied  north  of  the  Ohio  River,  was  extended 

251 


CoHsiitutional  History  of  Ibc  American  People 

over  the  Louisiana  purchase,  north  and  west  of 
the  State  of  Missouri,  and  the  greater  part  of  the 
republic  was  thereby  made  free  soil. 

From  the  12th  of  June  till  the  19th  of  July  the 
convention  was  busy  at  St.  Louis  in  forming  a 
constitution  for  the  new  State.  Among  other  or- 
dinances it  passed  one  formally  declaring  the  as- 
sent of  the  people  of  the  State  of  Missouri  to  the 
conditions  of  the  enabling  act.  The  new  consti- 
tution was  approved  by  the  people,  who,  at  the 
time  of  voting  approval,  had  elected  a  State  ticket 
and  practically  established  a  State  government. 
The  enabling  act  had  provoked  the  first  exhaust- 
ive discussion  of  slavery  in  Congress.  The  act 
was  itself  a  compromise.  As  first  submitted  to 
Congress,  the  constitution  of  the  new  State  di- 
rected its  Legislature,  as  soon  as  possible,  to  ex- 
clude free  persons  of  color  from  the  State.  The 
clause  at  once,  and  for  the  first  time,  raised  the 
question  whether  such  a  provision  conflicted  with 
the  national  Constitution.  Were  these  citizens 
of  the  United  States }  The  controversy  threat- 
ened to  prevent  the  admission  of  the  State.  New 
York,  and  other  States  in  which  these  persons 
might  become  electors,  saw  in  the  exclusion  a 
direct  violation  of  the  rio-hts  of  their  citizens 
under  the  Constitution.  By  a  "  solemn  act " 
the  Missouri  Legislature  promised  that  the  ob- 
jectionable clause  should  never  be  applied  to 
citizens  from  another  State,  and,  on  the  loth  of 
August,  1 82 1,  President  Monroe,  who  had  been 
authorized    to     admit    the    State     upon    receipt 

252 


^V""'^^        POSSESSIONS 


-  -  GeoU<^^  ^     r  LEGEND 

i  (o  <S  /n/iai.  (o  (*e  S<7.  /«//« 


Cenief   c  '  Popvlalioit 


THE  UNITED  STATES  I- 
IN  1820 

SHOWING  CIVIL  DIVISIONS 
AND  DISTRIBUTION  OF  POPULATION 


I 


i 


Massacbti^setts  Makes  a  Constitution 

of    such    a    promise,    admitted    it    by    proclama- 
tion. 

While  the  Missouri  Compromise  was  pending, 
the  people  of  Massachusetts  residing  in  the  District 
of  Maine,  after  several  unsuccessful  attempts  to  or- 
ganize a  separate  State  government,  completed  a 
constitution  on  the  29th  of  October,  18 19,  in  con- 
vention at  Portland.*  Massachusetts  had  given  its 
formal  assent  in  June.  The  constitution  was  rati- 
fied by  the  electors  on  the  6th  of  December ;  Mas- 
sachusetts made  a  formal  cession  of  title  to  the  Dis- 
trict on  the  25th  of  February,  1820,  and  on  the  3d 
of  March  the  State  was  admitted.  At  this  time 
the  line  of  the  frontier  extended  four  thousand  one 
hundred  miles,  and  the  settled  area  was  nearly  five 
hundred  and  nine  thousand  square  miles.  Popu- 
lation was  rapidly  increasing  and  now  numbered 
nearly  ten  millions.!  Since  the  opening  of  the 
century  the  centre  of  population  had  moved  west- 
ward fifty  miles.  More  than  one-sixth  of  the  popu- 
lation was  in  slavery.^  Though  the  urban  popu- 
lation was  increasing,  less  than  half  a  million  souls 
were  to  be  found  in  cities.^    New  York,  the  lars^est, 

*  The  Debates  and  Journal  of  the  Constitutional  Convention 
of  the  State  of  Maine,  1819-20,  and  Amendments  subsequently 
made  to  the  Constitution.  [Edited  by  Charles  E.  Nash.j  Au- 
gusta:  Maine  Farmers'  Almanac  Press,  1894. 

t  9,633,822.  \  1,538,022. 

§  Alexandria,  District  of  Columbia,  8218;  Norfolk,  Virginia, 
8478;  Portland,  Maine,  8581;  Cincinnati,  Ohio.  9642;  Provi- 
dence, Rhode  Island,  11,767;  Richmond,  Virginia,  12,067;  Al- 
bany, New  York,  12.630;  Salem,  Massachusetts,  12.731;  Wash- 
ington, District  of  Columbia,  13,247  ;  Southvvark,  Pennsylvania, 
14,713;    Northern    Liberties,   Pennsylvania,   19,678;    Charleston, 

253 


Const  it  lit  ioiial  History  of  the  American  People 

contained  scarcely  one  hundred  and  twenty -five 
thousand;  Philadelphia  and  Baltimore,  each,  half 
as  many ;  Boston  less  than  one-third.  New  Or- 
leans was  larger  than  Charleston.  Territorial  sub- 
divisions indicated  what  movements  in  population 
were  in  progress,  and  a  great  body  of  immigrants 
was  impatiently  awaiting  the  extinguishment  of  the 
Indian  title  in  the  Northwest  and  the  Southwest. 
As  a  refuge  for  fugitive  slaves  the  Floridas  had 
long  been  a  cause  of  complaint  to  the  States  along 
the  Southern  border.  As  the  peninsula  belonged 
to  a  weak  nation,  there  was  some  hope  that  the 
cause  would  cease.  Partly  on  this  account,  but 
principally  in  compliance  with  the  aggressive  pol- 
icy of  slavocracy,  Congress,  on  the  15th  of  Janu- 
ary, 181 1,  by  resolution  declared  that  the  United 
States  could  not  without  serious  disquietude  see 
any  part  of  the  Floridas  pass  into  the  hands  of  a 
foreign  power,  and  that  a  due  regard  for  the  safety 
of  the  United  States  compelled  them  to  occupy 
the  territory — subject  to  future  negotiation.  On 
the  same  day  the  President  was  authorized  to  take 
possession  of  East  Florida  — the  country  south  of 
Georgia  and  Mississippi  Territory  and  east  of  the 
Perdido — and, on  the  12th  of  February, to  take  pos- 
session of  the  remainder  of  the  country  then  called 
West  Florida.  The  peninsula  thus  became  a  mil- 
itary possession  of  the  United  States.     This,  too, 

South  Carolina,  24,780;  New  Orleans,  Louisiana,  27,176;  Bos- 
ton, Massachusetts,  43,298 ;  Baltimore,  Maryland,  62,738  ;  Phila- 
delphia. Pennsylvania,  63,802;  New  York,  123,706.  The  urban 
population  aggregated  475.135- 

254 


Pushing  the  Republic  IVestward 

was  a  Southern  question,  as  the  pubHc  thought, 
and  the  unprecedented  act  of  Congress  met  with 
general  approval.  Undoubtedly  the  peninsula 
would  have  been  held  by  the  United  States  suc- 
cessfully had  war  followed,  but  the  treaty  of  ces- 
sion, concluded  on  the  2 2d  of  February,  1819,* 
brought  matters  to  an  amicable  settlement.  Of 
greatest  importance,  as  time  passed,  was  the  clause 
in  the  treaty  defining  the  western  boundary  of  a 
portion  of  the  Louisiana  purchase.  There  were 
those  who  asserted,  and  John  Quincy  Adams  was 
among  the  number,  that  the  United  States  had  ac- 
quired a  just  claim  as  far  west  as  the  Rio  Grande 
— an  idea  which  twenty-six  years  later  was  revived 
in  the  demand  for  the  "  reannexation  "  of  Texas. 
Until  March  30,  1822,  the  Floridas  continued  un- 
der a  military  government,  responsible  to  the  Presi- 
dent. On  that  day  they  were  united  under  a  Ter- 
ritorial organization  of  the  usual  form,  but  the  lack 
of  roads  and  waterways  between  the  eastern  and 
western  parts  compelled  a  departure  from  the  usu- 
al judicial  organization.  Two  superior  courts  were 
established — one  for  the  eastern  and  one  for  the 
western  part.  Twenty-two  States  and  two  Terri- 
tories were  now  organized  east  of  the  Mississippi, 
and,  to  the  west,  one  Territory  and  two  States. 

A  change  in  Territorial  government,  in  the  nat- 
ure of  a  reform,  was  made  by  the  act  of  Congress 
of  February  5,  1825,  affecting  Michigan.  Its  Gov- 
ernor and  Legislative  Council  were  empowered  to 

*  Treaties  and  Conventions,  pp.  1016-1023. 

255 


Constitutional  History  of  the  American  People 

divide  the  Territory  into  townships,  and  to  incor- 
porate any  of  them.  Henceforth  county  ofificers 
were  to  be  elected  by  popular  vote.  These  were  im- 
portant steps  towards  independent  and  responsible 
local  government.  It  was  an  application  of  civil  no- 
tions long  prevalent  in  New  England  and  New  York, 
but  now  for  the  first  time  applied  by  Congress  to  a 
Territory.  Its  appearance  in  Michigan  is  explained 
by  the  nativity  of  the  people,  who,  for  the  most 
part,  had  emigrated  from  New  York  and  New 
England.  The  reform  thus  early  introduced  into 
Michigan  was  a  sign  of  the  times,  and  particularly 
in  the  North.  The  laws  on  local  government  soon 
after  passed  by  the  Michigan  Legislature  became 
the  nucleus  of  articles  on  local  government,  taxa- 
tion, and  finance  which,  nearly  twenty  years  later, 
this  State  was  the  first  to  insert  in  a  written  con- 
stitution.* 

Few  of  the  State  boundaries  were  at  this  time 
settled,  and  scarcely  a  session  of  a  Legislature 
passed  without  some  act  or  resolution  bearing  on 
the  disputed  question.  The  greater  part  of  the 
national  boundaries  was  also  unsettled.  Save  the 
sea-line,  along  the  Atlantic  and  the  Gulf,  the 
boundaries  of  the  country  were  yet  diplomatic 
problems.  The  treaty  with  Great  Britain,  in 
I  783,1  had  provided  for  the  appointment  of  com- 
missioners to  settle  the  entire  boundary  line  be- 
tween the  two  countries,  and  the  treaty  of  Ghent, 
in   18144  I'l'i^de   a  more  definite   provision   for  a 

*  Of  1850.  t  Treaties  and  Conventions,  pp.  375-379. 

I  Id.,  pp.  399-405. 

256 


Boundary  Commissions  and  Their  Work 

commission.  On  the  i8th  of  January,  1822,  the 
commissioners  appointed  under  the  sixth  article 
of  this  treaty  gave  their  decision  at  Utica,*  and 
thus  estabHshed  the  boundary  from  Northern  New 
York  through  the  St.  Lawrence  and  the  great  lakes 
to  the  Lake  of  the  Woods.  The  next  portion  set- 
tled was  the  continuation  of  the  line  to  the  Rocky 
Mountains.  A  convention,  ratified  at  London  on 
the  2d  of  April,  1828,!  related  to  the  further  set- 
tlement of  the  boundary  towards  the  Pacific  coast, 
and  it  was  agreed  that  the  United  States  and  Great 
Britain  should  occupy  the  Oregon  country  in  com- 
mon, but  that  joint  occupation  should  cease  at  any 
time,  on  twelve  months'  notice  to  the  other  party, 
after  the  20th  of  October,  1828.  Thus  the  Ore- 
gon question  was  indefinitely  postponed.  The 
treaty  of  Ghent  also  provided  for  the  appointment 
of  commissioners  to  settle  the  northeastern  boun- 
dary, and,  by  agreement  of  the  same  day,  the  com- 
mission that  had  agreed  to  the  Oregon  occupation 
was  empowered  to  act,  but,  finding  it  impossible  to 
reach  a  satisfactory  decision,  they  agreed  that  the 
matter  in  dispute  should  be  submitted  to  an  ar- 
biter whose  decision  should  be  conclusive.  These 
negotiations  paved  the  way  for  an  amicable  settle- 
ment of  the  northeastern  and  northwestern  boun- 
daries, fifteen  years  later.| 

*  Treaties  and  Conventions,  pp.  407-410. 

t  Id.,  pp.  429-432. 

X  Before  this  settlement  was  reached,  Maine  and  Massachu- 
setts, the  States  chiefly  affected  by  the  decision,  passed  a  series 
of  resolutions  which  constitute  an  important  chapter  in  the  his- 
tory of  State  sovereignty  and  federal  relations.  See  the  resolu- 
I.— R  257 


Constitutional  Histoiy  of  the  American  People 

At  the  time  of  the  acquisition  of  Florida,  and 
of  the  admission  of  Maine  and  Missouri,  Texas, 
hitherto  a  Mexican  province,  revolted  and  declared 
itself  a  republic.  On  the  12th  of  January,  1828,  a 
boundary  treaty  was  concluded  between  Texas 
and  the  United  States,  but  political  events  soon 
obscured  both  the  treaty  and  the  boundary,  and  the 
treaty  proved  only  a  prelude  to  an  aggressive  pro- 
slavery  policy  directed  to  the  acquisition  both  of 
Texas  and  California.  The  issues  of  this  policy 
divided  the  country,  and  called  forth  resolutions 
from  many  of  the  State  Legislatures. 

The  oro^anization  of  Territories  and  the  admis- 
sion  of  States  kept  pace  with  the  movements  and 
the  increase  of  population.  At  the  close  of  the 
thii-d  decade  of  the  century  the  line  of  the  fron- 
tier extended  five  thousand  three  hundred  miles, 
and  the  settled  area  comprised  nearly  six  hundred 
and  thirty -three  thousand  square  miles.  The 
population  numbered  about  thirteen  millions,* 
nearly  all  of  whom  were  native-born.  Two  and 
one- third  millions  were  of  the  African  race,  the 
third  of  a  million  being  free  persons  of  color.  The 
most  significant  change  in  population  was  shown 
in  the  increase  in  the  number  and  size  of  cities. 
Nearly  nine  hundred  thousand  people  t  were  now 
living  in  cities,  each  having  a  population  of  eight 
thousand  or  more — and  thirty-two  towns  ranked 
as  cities.     The  five  largest  were  New  York,  Balti- 

tions  of  the  Legislature  of  Maine,  January  19,  1832,  published 
with  the  laws  of  that  year.     See  Note,  p.  340. 

*  12,866,020.  1864,509. 

258 


The  Beginning  of  Chicago 

more,  Philadelphia,  Boston,  and  New  Orleans. 
The  increase  in  city  population  signified  that  the 
country  was  changing  from  one  of  agriculture  to 
one  of  manufacturing  pursuits.  City  government 
as  yet  scarcely  existed.  State  constitutions  made 
no  direct  provision  for  it,  as,  at  the  time  of  their 
formation,  there  were  few  cities.  Cities  and  towns 
were,  with  few  exceptions,  a  part  of  the  govern- 
ment of  the  township  or  county  in  which  they 
were  located.  But  the  rapid  increase  of  the  city 
vote  soon  led  to  demands  for  new  apportionments 
of  representation.  This  signified  that  in  every 
State  containing  a  large  city  two  political  inter- 
ests— the  rural  and  the  urban — were  struggling  to 
control  legislation. 

On  the  27th  of  September,  1830,  the  founda- 
tions were  laid  of  a  city  destined  in  two  genera- 
tions to  become  the  second  most  populous  on  the 
continent.  On  that  day  three  hundred  and  twenty 
acres,  surveyed  as  in-lots  and  out-lots  at  Chicago, 
were  offered  for  sale,  and  about  one-half  of  the  in- 
lots  were  sold  for  nearly  seven  thousand  dollars  in 
cash.  A  person  present  at  the  sale  recorded  at 
the  time  that  there  was  not  then  a  freeholder 
within  a  hundred  miles  of  the   place.*     Chicago 

*  Extract  from  manuscript  letter: 

Chicago  Illinoise  October  13th  1830. 
Thomas  Forster  Esquire — 

*  *  *  this  section  where  the  town  of  Chicago  is  laid  out  is  No.  9,  the 
south  side  of  it,  320  acres,  was  laid  out  in  Inlots  and  out-lots  and  sold  for 
the  use  of  the  canal  tlie  sale  comenced  on  27  ult.  about  the  one-half  of  the 
Inlots  were  sold,  and  a  fiew  peaces  of  land  the  commissioners  Received 
iipwardes  of  $7000  in  cash  here  for  what  lots  were  sold,  before  said  sale 
there  was  not  one  freeholder  within  100  miles  of  this  place  that  held  one 

259 


Const  if  III  iojial  History  of  the  Aiucrican  People 

had  been  for  centuries  the  rendezvous  of  the  Indian 
tribes;  it  was  known  to  the  early  French  explor- 
ers, and  was  laid  down  on  their  maps  as  early  as 


foot  of  land,  the  Engineers  of  the  united  states  Mr.  Nicholson  and  Mr. 
Gyon  has  been  here  all  most  all  season  they  surveyed  the  harbour  and  fixed 
the  place  to  open  the  bar  it  is  400  yds  from  15  feet  water  in  the  lake  to 
20  feet  water  in  Chicago  River  about  100  yds  wide  &  caries  its  depth  & 
width  for  miles  in  the  town  the  River  forks,  and  Each  branch  is  as  large  as 
the  whole  branch  or  River  and  as  deep  the  town  is  laid  out  part  on  Each 
side  of  the  River  to  the  forks  which  is  East  and  west  more  than  half  a 
mile  then  one  branch  comes  from  the  north  and  the  other  from  the  south 
at  right  angles  and  part  of  the  town  is  in  the  forks — and  about  4  of  the 
lots  sold  is  about  Equal  in  all  the  3  parts  of  the  town  Each  branch  100 
yds  wide  there  can  be  no  beter  harbour  if  the  barr  is  opened  and  any  ves- 
sel can  turn  Round  that  sales  the  lakes — within  it  Mr.  Nicliolson  has  been 
sick  and  could  do  no  biiisiness  and  is  now  gone  to  the  south  about  200 
miles  for  his  health  Mr.  Gyon  the  united  states  Engineer  &  also  an 
Engineer  Imployed  by  the  state  from  the  state  of  Kentucky  near  the  falls 
they  have  been  out  with  a  parol  of  solders  from  the  Garrison  for  hands 
about  14  days  Examining  the  country  &c  and  not  on  stake  set  for  the  canal 
— some  of  the  canal  commissioners  are  here  wating  patiently  to  hear,  the 
result  of  the  Exploring  of  the  two  Engineers  one  for  the  state  the  other 
for  the  U  S — It  is  very  proble  that  the  canal  will  be  comenced  next  spring 
the  commissioners  inform  me  that  they  will  set  out  this  fall  10  miles  for 
Excuvation  but  I  have  my  doubts  al)out  it.  there  is  nothing  but  the  fear 
of  the  U.  S.  taking  advantage  of  the  time  of  comencing  tlie  canal,  to  Hold 
the  land  granted  by  congress. 
Sir. 

I  have  given  you  a  history  of  some  parts  of  this  Country  having  travled 
some  thriig  it  and  meeting  witli  numbers  of  gentlemen  from  different  parts 
of  the  state  of  the  first  Information,  and  of  talents,  altho  I  was  not  in  a 
good  state  of  health  part  I  have  Indeavored  to  gether  all  the  Information 
in  my  power  for  the  time, — on  last  Saturday  the  Indians  drew  at  this  place 
their  annuity  great  preperations  was  made  by  numerous  traders  and  mar- 
chants  &c  by  bulding  huts  some  with  logs  some  in  tents  &  other  in  bord 
shanties,  but  from  the  best  Information  I  could  gether  the  Cheafs  caried 
off  above  one  third  of  the  cash  to  their  vilages  to  make  the  dividend  at 
home  with  their  tribes  but  the  traders  will  follow  and  pick  it  up  from 
them  at  home  but  the  traders  all  came  far  short  if  their  Expecttations*** 
Very  Respectfuly  I  Remain 
your — 

Most  obedient  Humble  Srvt. 

James  Harrington. 

260 


Indians  Bar  the  Way 

1703.*  The  time  of  its  founding  may  be  said  to 
mark  the  beginning  of  the  municipal  period  of 
American  democracy.  At  the  adoption  of  the 
national  Constitution  not  more  than  three  people 
in  a  hundred  lived  in  cities;  at  the  time  of  the 
founding  of  Chicago  the  number  had  doubled. 

Nearly  all  of  Michigan,  and  nearly  one -half  of 
Indiana  and  Illinois,  were  yet  unsettled.  In  the 
peninsula  the  Ottawa  and  Chippewa  tribes,  and  in 
the  two  States  the  Miamis,  Sac,  Fox,  and  Potta- 
wattomies  possessed  their  old  seats  quite  undis- 
turbed. In  like  manner  the  Cherokees  and  Creeks 
in  Georgia  and  Alabama,  the  Choctaws  and  Chick- 
asaws  in  Alabama  and  Mississippi,  kept  back  the 
tide  of  immigration.  All  these  tribes  were  soon 
to  be  removed  west  of  the  great  river.  The  line 
of  least  resistance  for  immigration  to  the  West 
thus  continued  along  the  Ohio,  as  of  old.  Vir- 
ginia sent  immigrants  to  Ohio  and  Kentucky, 
and  these  in  turn  to  Indiana  and  Illinois  and 
Missouri.  Tennessee,  the  Carolinas,  and  Georgia 
had  sent  their  sons  and  daughters  into  Alabama 
and  Mississippi,  and  now  the  inhabitants  of  these 
were  migrating  in  turn  to  Florida,  Louisiana,  and 
Arkansas.  Into  the  Northwest  were  passing  the 
long  lines  of  immigrant  wagons  from  New  Eng- 
land, New  York,  and  Pennsylvania.  Could  one 
from  some  lofty  height  have  taken   in  the  whole 

*  On  the  rare  Carte  du  Mexique  et  de  la  Floride  des  Terres 
Angloises  et  des  Isles  Antilles  du  Course  et  des  Environs  de  la 
Riviere  de  Mississipi  ....  par  Guillaume  Del  'Isle  Geographe 
de  I'Academie  Royale  des  Sci.  a  Paris,  1703. 

261 


Const  it  lit  ioiial  History  of  the  American  People 

Western  country  at  one  view,  he  would  have  seen 
the  faces  of  thousands,  young  and  old,  turned  tow- 
ards the  West,  hopefully  seeking  homes.  Here 
and  there  along  the  wilderness -roads  through 
Southern  forests,  and  by  the  wagon-tracks  on  the 
prairie, camp-fires  were  burning,men  wer,e  on  guard 
over  sleeping  women  and  children,  and,  not  infre- 
quently, wild  animals  and  lurking  Indians  were 
prowling  near.  Nor  would  the  wisest  of  men  have 
been  able  to  foretell  that  in  less  than  a  dozen  years 
the  country  should  witness  a  complete  revolution 
in  the  means  of  transportation.  The  West,  whose 
frontier  was  now  at  Kansas  City,  had  been  taken 
by  a  people  who  came  on  horseback  and  with  ox- 
teams.  With  these  primitive  powers,  in  the  short 
space  of  forty  years,  the  frontier  had  been  carried 
from  Pittsburgh  westward  a  thousand  miles. 

In  the  founding  of  new  Territories,  new  States, 
and  new  cities,  new  men  came  from  obscurity  to 
fame  and  power.  Some  laid  out  towns ;  some, 
like  Lincoln,  surveyed  farms  and  located  township 
lines ;  others  served  in  the  Assembly,  or  on  the 
bench,  or  in  the  constitutional  convention.  When 
a  Territory  became  a  State  the  few  who  had  been 
active  in  effecting  the  change  became  Governors 
and  judges,  or  were  elected  to  the  House  or  to 
the  Senate.  Steadily  throughout  the  West  the 
majority  of  the  electors  supported  the  party  which 
Jefferson  had  founded.  The  West  was  democratic. 
New  leaders  took  the  places  of  the  old.  The  gen- 
eration that  took  part  in  the  stirring  scenes  of 
'76   had    passed    away.      Franklin    and  Washing- 

262 


Broadening  the  Qualifications  of  Koters 

ton,  Morris,  Sherman,  Pinckney,  Mason,  Rutledge, 
seemed  to  belong  to  a  distant  past.  Jefferson  and 
Hamilton,  though  dead,  had  passed  into  political 
immortality,  Webster  and  Clay,  Benton  and  Cal- 
houn filled  the  eye  of  the  public,  and  Jackson  and 
Harrison  were  the  military  heroes  of  the  age. 
Already  covetous  eyes  were  looking  across  the 
border  into  Texas,  and  slavocracy,  excluded  from 
the  greater  part  of  the  Western  country  by  the 
Missouri  Compromise,  was  planning  the  reannexa- 
tion  of  that  republic  and  its  transformation  into 
slave  soil. 

Yet  slavery  was  not  the  burden  of  the  people's 
thought.  A  struggle  that  interested  them  more 
was  in  progress — the  extension  of  the  franchise. 
Religious  and  property  qualifications,  twin  relics 
of  colonial  days,  were  coming  to  be  interpreted  as 
contrary  to  the  spirit  of  republican  institutions. 
Free  schools,  the  equitable  apportionment  of  repre- 
sentation, an  elective  judiciary,  local  government, 
land  speculation,  internal  improvements,  the  use 
of  public  credit  were  the  issues  of  paramount  in- 
terest to  the  commonwealths  and  were  beginning 
to  dominate  their  laws  and  constitutions.  No 
longer  were  the  political  theories  of  the  eighteenth 
century  the  first  thought  of  the  leaders  of  public 
opinion.  A  half- century  of  experience  in  repre- 
sentative government  had  taught  the  people  of 
the  commonwealths  that  theory  must  be  construed 
by  administration.  The  questions  how  to  secure 
a  trustworthy  bank  and  outlets  for  trade  by  high- 
ways and  canals  were  now  discussed  with  the  zeal 

263 


Constitutional  History  of  tJje  American  People 

which,  in  1787,  the  question  of  representation  had 
provoked  in  the  federal  convention.  Nor  is  the 
cause  far  to  seek.  More  than  as  many  people  as 
were  living  within  the  original  States  at  the  time 
of  the  convention  were  now  living  in  States  and 
Territories  that  then  had  no  existence.  This  new 
nation  accepted  as  settled  ideas  which  were  un- 
decided in  1787.  The  Constitution,  and  they 
who  made  it,  were  passing  into  perspective.  A 
new  generation  felt  new  needs.  History  is  in- 
structive, but  it  cannot  run  a  government.  The 
West  needed  a  market — whence  the  cry  for  in- 
ternal improvements.  It  needed  money — whence 
the  demand  for  State  banks.  It  knew  nothing  of 
social  traditions — whence  its  rejection  of  discrimi- 
nating qualifications  for  elector  and  elected,  and 
its  demand  that  public  offices  should  be  filled,  not 
by  appointment,  but  by  popular  vote.  It  began  life 
without  churches  and  schools  and  with  a  desire 
for  knowledge — whence  the  establishment  of  free 
schools  for  all  and  the  multiplication  of  religious 
sects.  Hard  work  and  isolation  made  thinking  a 
habit — whence  the  age  bred  men  of  limited  read- 
ing, but  of  epoch-making  ideas,  and  of  these  Lin- 
coln was  easily  foremost.  To  know  this  young 
West,  this  new  world  of  revised  democracy,  we 
must  know  the  lives  of  the  settlers.  We  must  fol- 
low them  in  their  migrations  and  their  labors,  in 
their  expectations  and  their  disappointments. 

No  man  knew  that  during  these  years  of  the  new 
century  the  embodiment  of  the  new  nation  was 
coming  into  the  early  years  of  manhood,  and  that 

264 


The  Sturdy  Americanism  of  the  West 

an  obscure  Kentucky  family,  emigrating  from  In- 
diana to  central  Illinois,  bore  with  it  the  destiny  of 
democracy  in  America.*  The  fascination  which 
the  early  life  of  Lincoln  has  in  our  day  for  old  and 
young  is  of  the  Homeric  quality,  belonging  to  a 
stern  age  that  has  passed  away.  Yet  his  life  was 
for  nearly  forty  years  like  the  lives  of  thousands 
of  men  of  the  West  whose  names  are  now  foro^otten. 
It  is  the  making  of  the  West  that  proved  to  be  the 
making  of  the  nation.  The  East  long  continued 
Anglican  and  continental ;  the  West  began  Amer- 
ican— and  by  the  West  is  meant  the  great  valley  of 
the  Mississippi.  As  yet  the  sentiment  of  union 
was  feeble  and  obscure.  It  was  one  of  States 
united,  not  of  the  United  States.  No  man  had 
stirred  the  imagination  of  the  people  with  the 
thought  of  nationality.  It  was  an  age  of  State-mak- 
ing— of  the  founding  of  cities  and  of  road-making 
from  east  to  west,  but  not  from  north  to  south. 
Government  was  a  personal  matter,  not,  as  now, 
a  function  handed  over  to  committees. 

Many  associations  unknown  to  the  East  made 
the  national  government  a  part  of  daily  life  in  the 
West.  Congress  had  established  the  Territory, 
and  every  foot  of  land  in  cultivation  or  for  sale 
had  been  surveyed  by  an  official  of  the  United 
States.  Every  title  came  from  the  national  land- 
ofHce.     Every  sixteenth  section  was  a  guarantee  of 

*  A  map  of  Illinois,  "  showing  points  of  interest  in  Lincoln's 
early  life,"  and  the  route  of  the  family  from  Indiana,  is  given  on 
p.  45  of  Miss  Tarbell's  Early  Life  of  Lincoln.  New  York,  S.  S. 
McClure,  1896. 

265 


Const H lit ional  History  of  the  American  People 

free  schools.  With  these  prosaic  associations  no 
colonial  traditions,  royal  grants,  or  conflicting 
State  claims  interfered.  It  was  a  new  world ;  a 
fresh  experience;  a  precedent  for  posterity.  The 
vastness  of  the  public  domain  made  generosity  an 
easy  virtue  with  the  government,  and  land  could 
be  had  almost  for  the  asking. 

It  followed  that  the  new  States  and  the  old 
viewed  the  government  in  quite  different  lights. 
The  old  Thirteen  looked  upon  the  Union  as  their 
creation ;  the  new  States  looked  upon  it  as  their 
creator.  They  began  with  the  Union,  but  the 
older  States  thought  that  the  Union  began  with 
them.  Old  and  new  alike  thought  of  the  Union 
as  a  compact — as  a  government  of  specified,  dele- 
gated powers.  To  this  degree  of  unanimity  all 
the  States  had  attained — from  Maine  to  Missouri, 
from  Michigan  to  Florida.  The  doctrine  of  '98 
was  held  by  the  majority  of  people  who  gave  the 
question  any  thought.  It  was  both  the  legal  and 
the  historical  view.  Equality  was  a  well-worn 
word  in  1830,  but  the  century  was  to  reach  its 
close  before  politicians  and  parties  and  newspa- 
pers and  preachers  and  teachers  and  writers  in 
America  were  to  be  talking  and  thinking  and  de- 
manding economic  equality.  As  yet,  political 
equality  was  conceived  to  be  the  rightful  remedy 
for  all  social  ills. 


CHAPTER   X 

FEDERAL    RELATIONS— MISSOURI 

By  the  treaty  of  1803  the  United  States*  agreed 
to  protect  the  inhabitants  of  the  Louisiana  coun- 
try in  the  enjoyment  of  their  Hberty,  religion,  and 
property.!  The  country  was  slave  soil.  Slaves 
were  property,  and  by  the  treaty  this  property 
was  under  the  protection  of  the  United  States. 
The  protection  was  not  conditioned  upon  the 
amount  or  the  value  of  the  property.  The  owner 
of  a  single  slave  was  as  much  the  object  of  the 
treaty  as  if  the  entire  acquisition  had  been  filled 
with  a  slave -holding  population.  When  Louisi- 
ana was  admitted,  the  guarantee  of  the  treaty,  the 

*  The  principal  autiiorities  for  this  chapter  are  the  Annals  of 
Congress,  1819-21  — i.e.,  the  fifteenth  Congress,  second  session, 
to  the  close  of  the  second  session  of  the  sixteenth  Congress. 
This  chapter  was  written  several  years  before  the  publication 
of  Professor  James  A.  Woodburn's  article  on  The  Historical 
Significance  of  the  Missouri  Compromise,  in  the  Annual  Report 
of  the  American  Historical  Association  for  1893,  pp.  251-297. 
Washington:  Government  Printing-office,  1894.  In  revising  my 
chapter  I  have  been  glad  to  be  confirmed,  in  several  particulars, 
by  Professor  Woodburn's  able  paper. 

t  Art.  iii.  The  treaty  may  be  found  in  Treaties  and  Conven- 
tions, etc.,  pp.  331-334;  the  convention  for  the  purchase-money, 
pp.  334,  335  ;  for  the  payment  of  debts  assumed  by  the  United 
States,  pp.  335-342. 

267 


CoiistHntioiial  History  of  the  American  People 

wishes  of  the  inhabitants,  and  the  will  of  Congress 
made  it  a  slave  State.  There  were  at  the  time, 
exclusive  of  the  Indian  tribes,  about  one  hundred 
thousand  people  in  the  Louisiana  country — three- 
fourths  of  whom  were  in  the  new  State,  and  near- 
ly all  of  the  remainder  within  the  present  bounds 
of  Missouri. 

Ten  years  passed.  Arkansas  had  nearly  fifteen 
thousand  population  and  Missouri  nearly  seventy 
thousand.  In  Missouri,  at  this  time,  there  were  ten 
thousand  slaves;  in  Arkansas  about  sixteen  hun- 
dred. The  treaty  further  provided  for  the  ad- 
mission of  new  States  that  might  be  formed  out 
of  the  purchase  —  on  an  equal  footing  wdth  the 
original  States.  The  petition  of  Missouri  for  ad- 
mission was  presented  to  the  House  on  the  i6th 
of  March,  1818,  by  Scott,  its  delegate,  as  chairman 
of  the  select  committee  to  which  this  and  several 
petitions  of  a  similar  nature  were  referred.  He 
reported  a  bill  on  the  i8th  of  April,  empowering 
the  people  of  the  Territory  to  form  a  constitution, 
a  State  government,  and  to  be  admitted  into  the 
Union  on  an  equal  footing  with  the  other  States. 
The  bill  was  read  twice  and  referred  to  the  Com- 
mittee of  the  Whole,  but  received  no  further  at- 
tention at  this  session. 

At  the  second  session,  Henry  Clay,  the  Speaker, 
on  the  1 8th  of  December,  laid  before  the  House  a 
recent  memorial  of  the  Missouri  Legislature  pray- 
ing for  admission;  but  not  until  the  13th  of  Feb- 
ruary following  did  the  question  come  up,  when, 
in  Committee  of  the  Whole,  the  House  began  the 

268 


Restricting  ilje  Spread  of  Slavery 

discussion  of  the  enabling  acts  for  Alabama  and 
Missouri.  As  reported,  these  were  in  the  form 
hitherto  usual  in  the  admission  of  a  State — that 
the  constitution  of  the  new  commonwealth  be  re- 
publican in  form  and  not  inconsistent  with  the 
Constitution  of  the  United  States.  The  act  for 
Missouri  was  first  considered,  and,  on  the  second 
day,  Tallmadge,  of  New  York,  offered  an  amend- 
ment embodying  two  restrictions — that  the  further 
introduction  of  slavery,  except  as  a  punishment  for 
crime,  be  prohibited,  and  that  all  children  born 
within  the  State  should  be  free,  but  might  be  held 
to  service  until  the  age  of  twenty-five  years.  The 
purpose  of  the  second  restriction  was  gradual 
emancipation — after  the  precedent  of  most  of  the 
Northern  States.  The  first  restriction  was  taken 
from  the  Ordinance  of  1787.  The  restrictions,  it 
was  said,  were  both  right  and  expedient.  On  the 
other  hand,  it  was  argued  that  Congress  had  no 
power  to  prescribe  the  details  of  a  State  govern- 
ment other  than  that  it  must  be  republican  in 
form.  Of  what  value  a  restriction }  Once  ad- 
mitted, a  State  had  the  unquestioned  right  to 
change  its  constitution.  But,  replied  the  friends 
of  the  restriction,  Congress  has  a  clear  and  compre- 
hensive grant  of  power  in  the  constitutional  pro- 
vision authorizing  it  "  to  dispose  of  and  make  all 
needful  rules  and  regulations  respecting  the  Ter- 
ritory or  other  property  belonging  to  the  United 
States."  Thus,  in  exercise  of  this  power,  Con- 
gress, in  the  enabling  acts  for  Ohio,  Indiana,  and 
Illinois,  had  made  their  admission  to  the  Union 

269 


Consfitiitioiial  History  of  the  American  People 

conditional  upon  their  constitutions  not  being 
repugnant  to  the  Ordinance  of  1787.  Missouri 
lay  in  the  same  latitude.  Why  should  not  the 
same  principles  of  government  be  applied  ?  Very 
true,  answered  the  opposition,  if  Congress  were 
not  restrained  by  the  treaty  of  1803.  The  obli- 
gation rests  on  Congress  to  protect  the  property 
of  the  inhabitants  of  the  late  French  territory ; 
therefore  no  restriction  can  be  placed  on  slavery. 
Not  so,  said  the  supporters  of  the  amendment. 
The  treaty  contained  not  one  word  about  erect- 
ing the  new  country  into  States.  Who  make 
treaties  ?  The  President  and  the  Senate.  Would 
any  man  claim  that  they  had  power  to  bind 
Conarress  to  admit  new  States  into  the  Union.'* 
Then  the  President  and  the  Senate  could  change 
the  Constitution  and  rob  Congress  of  one  of  its 
expressly  delegated  powers.  Clearly  the  treaty 
could  not  affect  the  question,  and,  in  truth,  the 
erection  of  the  Territories  of  Louisiana  and 
Orleans,  and  the  admission  of  the  first  as  a 
State,  proved  this.  Congress  had  then  annexed 
conditions :  the  civil  law  had  to  give  place,  in 
large  measure,  to  the  common  law;  trial  by  jury 
was  introduced ;  and  the  lansfuao^e  of  the  inhabi- 
tants — chiefly  Spanish  and  French — was  not  al- 
lowed to  remain  supreme;  legislative  and  judicial 
proceedings  were  required  to  be  conducted  in 
English.  Congress  was,  therefore,  sovereign  with 
respect  to  the  Territories.  Missouri  was  bought 
for  money,  and  might  be  sold  for  money.  How 
irrational,  then,  to  claim  that  though  Congress  had 


Slavery  Detrimental  to  the  State 

power  to  change  the  political  relations  of  its  free 
citizens  by  transferring  their  country  to  a  foreign 
power,  it  could  not  provide  for  the  gradual  aboli- 
tion of  slavery  within  its  limits  nor  establish  civil 
regulations  naturall}^  flowing  from  a  self-evident 
truth. 

If  slavery  be  excluded  from  the  new  State, 
argued  a  Virginia  member,  the  price  of  the  pub- 
lic lands  would  fall.  Not  so ;  the  reverse  would 
follow,  replied  a  member  from  New  York.  Com- 
pare the  price  of  land  in  Pennsylvania  and  Mary- 
land, along  the  line  dividing  free  from  slave  soil. 
On  the  Pennsylvania  side,  where  slavery  was  for- 
bidden, land  uniformly  sold  at  a  higher  price  than 
that  of  the  same  quality  on  the  Maryland  side. 
Slavery  would  diminish  the  value  of  the  public 
lands  in  Missouri,  just  as  it  had  diminished  the 
value  of  land  wherever  it  was  allowed.  Why  had 
not  the  people  of  Ohio,  Indiana,  and  Illinois 
changed  their  State  constitutions  and  introduced 
slavery  ?  Because  they  had  learned  by  experience 
the  value  of  the  Ordinance  of  1787.  Public  senti- 
ment there  sustained  the  principle  of  the  Ordinance 
far  more  effectually  than  any  constitutional  pro- 
hibition could  do.  Is  it  not  the  duty  of  Congress, 
inquired  a  Massachusetts  member,  to  ascertain, 
before  admitting  a  new  State,  that  its  constitution, 
or  form  of  government,  is  republican }  This  was 
secured  by  the  restriction.  The  existence  of  sla- 
very in  any  State  is,  so  far,  a  departure  from  re- 
publican principles.  It  violated  the  Declaration 
of  Independence  and  the  principle  on  which  our 

271 


Const  it  lit  ional  History  of  the  American  People 

national  and  State  constitutions  are  professedly 
founded.  Since  it  could  not  be  denied  that  slaves 
are  men,  it  followed  that,  in  a  purely  republican 
government,  they  are  born  free,  and  are  entitled  to 
liberty  and  the  pursuit  of  happiness.  No  sooner 
was  this  said  than  members  were  on  their  feet  call- 
ing the  speaker  to  order  for  using  improper  lan- 
guage. He  had  no  right,  in  debate,  to  question  the 
republican  character  of  the  slave-holding  States; 
such  language  tended  to  deprive  them  of  the  right 
to  hold  slaves  as  property ;  moreover,  it  was  not 
improbable  that  there  were  slaves  in  the  gallery 
listening  to  the  debate.  But  the  member  quickly 
assured  the  House  that  nothing  was  further  from 
his  thoughts  than  to  question  the  right  of  Virginia 
and  other  States  which  held  slaves  when  the  Con- 
stitution was  established  to  continue  to  hold  them. 
With  that  subject  the  national  Legislature  could 
not  interfere,  and  ought  not  to  attempt  interference. 
Would  it  be  a  republican  form  of  government 
if  Missouri  submitted  a  constitution  by  which  no 
person  could  vote  or  be  elected  to  office  unless  he 
possessed  a  clear  annual  income  of  twenty  thousand 
dollars  }  As  few  had  such  an  income,  the  govern- 
ment would  be  an  aristocracy  in  fact,  though  a 
republic  in  form.  But  if  all  other  inhabitants,  save 
those  favored  by  wealth,  were  to  be  made  the 
slaves  of  this  oligarchy — and  consequently  mere 
property — would  not  the  republican  principle  be 
outraged?  The  exclusion  of  the  black  popula- 
tion from  all  political  freedom  and  the  making 
them  the  property  of  the  whites  were  an  equally 

272 


The  Constitution  Does  not  Appty  to  New  States 

palpable  invasion  of  right  and  abandonment  of 
principle.  If  permitted  in  a  new  State,  Congress 
would  violate  the  Constitution;  the  excuse  existing 
in  1787  no  longer  remained.  Then  concessions 
were  necessary  and  proper.  The  States  in  which 
slavery  existed  claimed  the  right  to  continue  it, 
nor  could  they  be  asked  to  make  a  general  eman- 
cipation of  their  slaves.  It  would  have  endangered 
their  political  existence.  The  Constitution  was  a 
compact  among  the  original  States,  and  contain- 
ed certain  exceptions  in  their  favor — such  as  the 
obligation  on  Congress  not  to  prohibit  the  African 
slave-trade  till  1808;  also  the  provision  for  the 
rendition  of  fugitive  slaves.  These  exceptions  did 
not  apply  to  new  States.  To  attempt  to  extend 
slavery  over  them  would  be  a  direct  violation  of 
the  clause  which  guarantees  a  republican  form  of 
government  to  the  States.  Clay  had  argued  that 
the  proposed  restriction  would  violate  the  provi- 
sion that  citizens  of  each  State  shall  be  entitled  to 
all  the  privileges  and  immunities  of  citizens  of  the 
several  States.  But  can  slavery  be  called  a  privi- 
lege ?  inquired  a  member.  Surely  what  was  gained 
by  the  master  was  lost  by  the  slave.  Slavery  was 
the  exception  to  the  general  principles  of  the  Con- 
stitution. Clay  had  asked,  Where  would  condi- 
tions end  if  Congress  could  impose  them  on  a  new 
State }  Congress,  was  the  reply,  is  obliged  to  re- 
quire a  republican  form  of  government — which  was 
enough  to  decide  the  question  at  issue;  but  it  had 
the  right,  at  its  discretion,  to  impose  any  reasona- 
ble condition.  The  conditions  imposed  on  Ohio, 
I.— s  273 


Constitutional  History  of  t/je  American  People 

Louisiana,  Illinois,  Indiana,  and  Mississippi  were 
not  more  indispensable  ingredients  in  a  republican 
form  of  government  than  the  restriction  now  pro- 
posed for  Missouri — the  equality  of  privileges  for 
all  its  population. 

But,  it  was  said,  the  restriction  would  abridge 
the  rights  of  citizens  of  the  slave-holding  States  to 
transport  their  slaves  to  the  new  State,  for  sale  or 
otherwise  —  thus  violating  the  principle,  clearly 
laid  down  in  the  Constitution,  of  the  equal  rights 
of  citizens  of  the  several  States.  Did  not  the 
Constitution  itself  answer  this  objection  ?  The 
migration  or  importation  of  such  persons  as  any 
of  the  States  existing  in  1787  might  admit  should 
not  be  prohibited  by  Congress  till  1808.  Clearly 
this  implied  that  after  that  year  migration  or  im- 
portation might  be  prohibited.  Importation  had 
been  prohibited,  but  not  migration.  Could  not 
Congress  restrain  it  whenever  it  might  be  judged 
expedient  ?  Migration  did  not  mean  importation 
nor  exportation.  Nor  could  it  mean  the  reception 
of  free  blacks  from  a  foreign  country,  as  some 
alleged,  for  there  was  no  possible  reason  for  regu- 
lating their  admission  by  the  Constitution.  More- 
over, none  ever  came.  There  remained  but  one 
meaning  for  migration  —  the  transportation  of 
slaves  from  slave- holding  States  to  other  States. 
Hitherto  it  had  not  been  necessary  for  Congress  to 
prohibit  migration  or  transportation  from  State  to 
State;  now  it  was  its  right  and  duty  to  prevent  the 
further  extension  of  the  intolerable  evil  of  slavery. 
To  these  arguments  for  the  amendment  there  was 


274 


A  Blow  for  Emancipation 

but  one  reply,  repeated  now  by  one  member,  now 
by  another:  If  the  citizens  of  Pennsylvania  or 
Virginia  enjoyed  the  right  of  deciding  whether  or 
not  they  should  have  slavery,  why  should  not  the 
citizens  of  Missouri  have  the  same  privilege  ? 
Discrimination  of  this  kind  by  Congress  among 
the  States  would  destroy  the  Union,  Let  the 
advocates  of  restriction  beware !  On  them  would 
rest  the  fearful  responsibility  if  civil  war  should 
come.  They  were  exciting  servile  insurrection ; 
they  were  attacking  the  vested  rights  of  property. 
Let  them  not  imagine  that  the  people  of  the  slave- 
holdinq;  States  did  not  know  their  rights  and 
would  not  protect  them. 

But  the  mind  of  the  House  was  made  up,  and 
on  the  1 6th  both  sections  of  the  amendment 
passed  —  the  first,  prohibiting  the  further  intro- 
duction of  slavery,  by  a  majority  of  eleven;*  the 
second,  for  gradual  emancipation,  by  a  majority 
of  fount  A  Delaware  member  voted  with  the 
majority  on  the  first  section,  and  ten  members — 
from  Massachusetts,  New  York,  New  Jersey,  New 
Hampshire,  Ohio,  and  Illinois — with  the  minor- 
ity. Both  sections  were  carried,  however,  by  a  sec- 
tional vote. 

On  the  next  day,  Taylor,  of  New  York,  moved 
the  Tallmadge  amendment  to  the  bill  providing 
a  Territorial  government  for  Arkansas — a  subdi- 
vision of  the  Missouri  Territory.  The  question 
differed  from  the  one  of  the  day  before.     That 

*  Eighty-seven  to  seventy-six. 
t  Eighty-two  to  seventy-eight. 

275 


Constitutional  History  of  the  American  People 

applied  to  a  State,  this  to  a  Territory.  Clay 
charged  the  supporters  of  the  amendment  with 
being  afflicted  with  negrophobia.  Who,  yester- 
day, feared  the  negro  faces  in  the  gallery?  was  the 
rejoinder.  But  the  amendment  would  coop  up 
the  people  of  the  slave-holding  States  by  prevent- 
ing the  extension  of  their  wealth  and  population. 
A  glance  at  the  map  would  confute  this  charge, 
was  the  reply :  what  immense  and  fertile  regions 
were  open  to  slavery,  from  the  Sabine  to  Georgia; 
what  millions  of  rich  acres  were  lying  waste  in 
Alabama,  Mississippi,  Louisiana!  Were  not  these 
enough } 

Was  not  the  amendment  an  entering  wedge  for 
an  attack  by  Congress  on  the  property  of  mas- 
ters in  their  slaves  1  Certainly  not.  The  amend- 
ment did  not  disturb  that  right,  even  in  Arkansas. 
But  it  would  tend  to  the  dissolution  of  the  Union. 
Impossible  !  Could  any  man  believe  that  the  pres- 
ervation of  the  Union  depended  on  the  admission 
of  slavery  into  a  Territory  which  did  not  belong 
to  the  States  when  the  Union  was  formed — a  Ter- 
ritory purchased  by  Congress,  and  for  which  it 
was  bound  to  legislate  with  faithful  regard  for  the 
public  welfare } 

To  this  it  was  answered  that  Congress  had  no 
right  to  legislate  on  the  property  of  citizens,  but 
could  levy  taxes  only.  Why  not  prohibit  other 
forms  of  property  from  crossing  the  Mississippi. 
The  Southern  States  had  given  up  the  vast  terri- 
tory north  of  the  Ohio  and  ought  not  to  be  de- 
prived of  a  small  share  of  the  advantages  of  this 

276 


A  Line  of  Demarcation  for  Slavery 

new  Louisiana  country.  At  this  point  a  claim  was 
put  forth  which,  thirty  years  later,  when  the  Mis- 
souri Compromise  was  re-examined,  became  one  of 
the  chief  reasons  for  its  repeal :  the  amendment 
proposed  would  take  away  from  the  people  of  Ar- 
kansas Territory  the  natural  and  constitutional 
right  of  legislating  for  themselves,  and  would  im- 
pose on  them  a  condition  which  they  might  not 
willingly  accept.  In  organizing  a  Territorial  gov- 
ernment and  forming  a  constitution,  they,  and  they 
alone,  had  the  right  to  be  the  judges  of  what  policy 
was  best  adapted  to  their  genius  and  interests,  and 
it  ought  to  be  left  exclusively  to  them.  They  alone 
could  decide  whether  to  prohibit  or  to  admit  slave 
immigration.  Slavery  was  an  evil  entailed  upon 
the  country ;  it  was  not  our  original  sin.  The 
more  widely  diffused,  the  less  the  evil.  The  peo- 
ple of  Arkansas  and  the  West  were  the  best  judges 
of  their  constitutional  rights.  This  was  popular 
sovereignty. 

Another  idea  destined  to  dominate  the  final 
decision  was  now  advanced  by  McLane,  of  Dela- 
ware. A  line  should  be  fixed  west  of  the  Missis- 
sippi, north  of  which  slavery  should  not  be  toler- 
ated. Congress  had  no  power  to  impose  any 
condition  upon  the  admission  of  a  State  impair- 
ing its  sovereignty.  The  term  State  meant  sov- 
ereignty. The  claim  of  right  to  impose  condi- 
tions was  a  double-edged  sword.  At  some  future 
day,  when  the  slave  -  holding  interest  dominated 
Congress,  it  might  be  made  a  condition,  when  a 
new  State  was  admitted,  that  slavery  should  never 

277 


Constitutional  History  of  tJje  American  People 

be  prohibited.  A  vast,  unsettled  region  made 
this  possible.  On  the  vote  the  amendment  was 
divided,  and  the  first  clause,  forbidding  the  further 
introduction  of  slavery,  was  defeated  by  one  vote  ;* 
the  second  clause  was  carried  by  two.t  On  the 
19th,  by  Clay's  casting  vote,  the  second  clause 
was  recommitted,  and  was  finally  struck  out  by 
two  votes. I  In  slightly  modified  form,  Taylor 
now  renewed  his  amendment,  but  it  was  rejected 
by  four  votes. §  He  then  applied  the  idea  of  a  fixed 
line  between  the  two  sections ;  slavery  should  not 
be  introduced  into  any  part  of  the  Territories 
of  the  United  States  lying  north  of  36°  30'  north 
latitude.  The  idea  at  once  met  with  favor,  and 
various  lines  were  proposed.  But  none  of  these 
lines  applied  to  Arkansas,  and  that  Territory  was 
organized  without  the  imposition  of  any  restric- 
tion on  slavery. 

It  may  be  remarked  that,  in  this  debate,  the 
principal  arguments  for  and  against  slavery  exten- 
sion, heard  later  in  the  debates  over  the  series  of 
enactments  called  the  Missouri  Compromise,  were 
outlined:  that  Congress  was  bound  by  the  treaty 
of  1803;  that  it  could  not  interfere  with  property 
rights ;  that  the  States  were  sovereign,  and  that 
Congress  could  impose  no  Condition  on  them  at 
admission.  The  suggestion  of  a  fixed  dividing 
line  between  slave  soil  and  free  soil  was  sedulously 
followed  up.  It  was  first  made  by  a  member  from 
a  slave-holding  border  State. 

*  Seventy-one  to  seventy,     t  Seventy-five  to  seventy-three. 
\  Eighty-nine  to  eighty-seven.  §  Ninety  to  eighty-six. 

278 


Agitation  Over  the  Rejection  of  Missouri 

On  the  17th  the  Missouri  bill  was  read  in  the 
Senate,  and  referred  to  a  committee  having  charge 
of  a  similar  bill  from  Alabama.  Ten  days  later 
both  sections  of  the  Tallmadge  amendment  were 
struck  out,*  and,  as  thus  amended,  the  bill  passed. 
Neither  House  would  recede,  and  meanwhile  Con- 
gress adjourned.  The  rejection  of  Missouri  im- 
mediately became  the  theme  of  discussion  all 
over  the  country.  The  case  was  reopened  and  re- 
argued by  all  sorts  and  conditions  of  men.  Peti- 
tions, arguments,  and  appeals  ;  pamphlets,  sermons, 
editorials,  and  resolutions  accumulated  as  the  sea- 
son's political  harvest.  When  Congress  met,  on 
the  6th  of  December,  no  member  was  forgotten, 
and  a  Representative  had  but  to  glance  over  his 
mail  to  discover  how  he  ought  to  vote  on  the 
Missouri  question.  Had  all  this  mass  of  opinion 
been  sorted,  it  could  have  been  cast  into  two  heaps 
— one  from  the  South,  one  from  the  North.  It 
was  a  sectional  question — the  first,  clearly  defined, 
that  had  arisen  since  the  formation  of  the  Union. 
On  the  8th,  Scott,  the  Missouri  delegate,  pre- 
sented several  memorials  from  the  Legislature  and 
some  of  the  inhabitants  of  the  Territory,  praying 
for  its  admission ;  and  Strong,  a  New  York  mem- 
ber, gave  notice  that  he  would  ask  leave,  on  the 
following  day,  to  introduce  a  bill  prohibiting  the 
further  extension  of  slavery  within  the  Territories 
of  the  United  States.  The  notice  was  a  sign  of 
the  times. 

*  The  first  by  a  vote  of  twenty-two  to  sixteen  ;  the  second,  by 
thirty-one  to  seven. 

279 


ConstHutional  History  of  the  American  People 

A  new  element  now  entered  into  the  problem. 
The  people  of  Maine  asked  admission  as  a  State, 
and  a  bill  for  this  purpose  was  introduced  in  the 
House  and  another  in  the  Senate.*  There  was 
nothins:  unusual  in  either  bill.  Each  was  a  sim- 
pie  enabling  act.  The  House  bill  passed  on  the 
3d  of  January,  1820.  While  on  its  progress.  Clay, 
on  the  30th  of  December,  expressed  himself  in 
ambiguous  but  suggestive  language.  If  hard  con- 
ditions were  to  be  imposed  on  new  States  beyond 
the  mountains,  and  Congress  were  thus  to  strike 
at  their  power  and  independence,  might  not  hard 
conditions  be  imposed  on  new  States  in  the  East  ? 
Whatever  this  signified,  on  the  6th,  when  the 
House  bill  came  up  in  the  Senate,  it  was  proposed 
to  embody  in  the  bill  for  the  admission  of  Maine  a 
clause  for  the  admission  of  Missouri.  Two  wholly 
irrelevant  matters  were  thus  combined.  Roberts, 
a  Senator  from  Pennsylvania,  labored  in  vain  to 
separate  the  propositions  and  to  amend  the  bill 
further  by  prohibiting  slavery  in  Missouri.  Every 
effort  of  the  restrictionists  to  apply  the  provisions 
of  the  Ordinance  of  1787  to  the  new  State  was  de- 
feated. In  the  debate  the  old  arguments  were  re- 
peated and  elaborated ;  citations  were  made  from 
the  writings  of  the  fathers,  and  The  Federalist 
was  quoted  in  evidence  by  both  sides.  On  the 
1 8th,  Senator  Thomas,  of  Illinois,  brought  in  a  bill 
to  prohibit  slavery  in  the  Territories  north  and  w^st 

*  The  Articles  of  Separation,  the  Proclamation  of  the  Governor 
of  Maine,  and  other  documents  are  given  in  Maine  Constitutional 
Convention,  1819-20;  Charles  E.  Nash,  editor,  Augusta,  1894. 

280 


The  Maine- Missouri  Bill  in  the  Senate 

of  the  proposed  State  of  Missouri,  which  bill  passed 
to  a  second  reading.  As  the  debate  continued, 
most  of  the  States  sent  up  resolutions,  and,  except 
those  from  Delaware,  the  resolutions  opposing  the 
extension  of  slavery  came  from  free  States.  Some 
compromise  must  be  made,  for  neither  the  restric- 
tionists  nor  the  extensionists  seemed  likely  to  re- 
cede. On  the  1 6th  of  February,  by  a  majority  of 
two  votes,  the  Senate  united  the  Maine  and  Mis- 
souri bills,  and  Thomas  offered  the  compromise. 
Except  within  the  limits  of  the  State  of  Missouri, 
in  all  the  territory  north  of  36°  30'  slavery  should 
be  prohibited.  Efforts  were  made  to  modify  this 
amendment — as  by  Barbour,  of  Virginia,  who  wished 
the  line  at  forty  degrees.  Thomas  amended  it  on 
the  following  day  by  adding  a  fugitive-slave  clause, 
and  in  this  form  it  passed  the  Senate  by  a  majority 
of  more  than  three  to  one.*  Eaton,  of  Tennessee, 
sought  to  have  the  amendment  apply  to  the  West 
only  so  long  as  it  remained  a  Territory;  and  Trim- 
ble, of  Ohio,  wished  the  restriction  to  apply  to  all 
territory  west  of  the  river,  except  Missouri ;  but 
both  propositions  were  rejected.  On  the  i8th  the 
Maine-Missouri  bill,  as  amended,  passed  the  Senate 
and  went  to  the  House.  Taylor  moved  that  the 
House  disagree  to  the  amendments,  and  Scott  that 
they  be  sent  to  the  Committee  of  the  Whole ;  his 
motion  had  precedence  under  the  rules.  A  long 
and  animated  discussion  followed,  when  the  motion 
to  commit  was  lost.t 

*  Thirty-four  to  ten. 
t  Seventy  to  one  hundred  and  seven. 
281 


Constitutional  History  of  the  American  People 

Would  the  House  cHsaorree  ?  This  was  debated 
three  days,  when,  b}'  large  majorities,  the  Missouri 
rider  and  the  Thomas  amendment  were  rejected.* 
The  House  then  took  up  its  own  bill,  with  the 
Taylor  restriction,  in  Committee  of  the  Whole. 
It  made  but  slight  progress ;  yet  the  discussion 
disclosed  that  a  restrictive  clause  of  some  kind 
would  be  likely  to  pass.  Taylor's  restriction 
passed,  in  Committee  of  the  Whole,  on  the  25th, 
and  on  the  following  day  Storrs,  of  New  York, 
moved  the  Thomas  amendment,  in  substance,  and, 
in  a  speech,  supported  it,  though  only  incidentally 
examining  the  right  of  Congress  to  impose  the 
slavery  restriction  on  Missouri.  Two  days  later 
a  message  was  received  from  the  Senate  that  it 
would  insist  on  its  amendments,  and  Taylor  at 
once  moved  that  the  House  insist  on  its  disas^ree- 
ment.  It  was  carried  by  a  large  majority — first, 
that  the  Maine  bill  and  the  Missouri  bill  should 
not  be  combined,!  and,  secondly, by  a  larger  major- 
ity, that  the  compromise  amendment  should  be  re- 
jected.|  The  meaning  of  the  vote  was  stated  by 
Lowndes,  of  South  Carolina.  The  friends  of  Mis- 
souri would  vote  for  the  compromise  principle 
when  combined  with  the  free  admission  of  the 
State ;  yet,  as  the  amendment  relative  to  Missouri 
had  been  disagreed  to,  it  was  useless  to  return  it  in 

*  The  Missouri  attachment  by  vote  of  ninety-three  to  seventy- 
two;  the  details  of  the  Missouri  bill,  by  vote  of  one  hundred  and 
two  to  sixty-eight;  the  Thomas  amendment,  by  vote  of  one  hun- 
dred and  fifty-nine  to  eighteen. 

t  Ninety-seven  to  seventy-six. 

I  One  hundred  and  sixty  to  fourteen. 

282 


Conference  on  the  Maine- Missouri  Bill 

connection  with  the  Maine  bill  alone.  Thus  it  was 
clear  that  Lowndes  and  his  friends  would  oppose 
slavery  restrictions  on  Missouri,  though  they  might 
agree  to  apply  them  to  the  Territories. 

When  the  Senate  was  informed  that  the  House 
insisted  upon  its  disagreement,  Thomas  moved  for 
a  committee  of  conference,  whereupon  a  debate 
marked  by  "vehemence  and  warm  feeling"  en- 
sued. But  the  motion  prevailed.  Its  author, 
Pinkney,  of  Maryland,  and  Barbour,  of  Virginia, 
were  appointed  conferees  for  the  Senate.  On  the 
next  day  the  House  agreed  to  confer,  and  ap- 
pointed as  conferees  Holmes,  the  delegate  from 
Maine;  Taylor;  Lowndes;  Parker,  of  Massachu- 
setts, and  Kinsey,  of  New  Jersey. 

This  procedure  did  not  interrupt  the  progress  of 
the  bill  pending  in  the  House,  and,  with  the  Taylor 
restriction,  it  passed  on  the  ist  of  March,*  and 
was  sent  to  the  Senate  for  concurrence.  The 
Senate,  on  the  following  day,  struck  out  the  Taylor 
restriction,!  substituted  the  Thomas  amendment, 
passed  the  bill,  and  sent  it  back  to  the  House. 
Would  the  bill  in  this  form  be  agreed  to  by  the 
conference  committee  .f*  At  the  request  of  Holmes, 
the  Senate  bill  was  laid  on  the  table  long  enough 
to  give  him  an  opportunity  to  make  a  report  from 
the  committee.  That  report  was  soon  made.  The 
Senate  should  recede  from  its  amendments — that 
is,  abandon  the  combination  of  Maine  and  Mis- 
souri in  one  bill — and  Maine  should  be  admitted. 

*  Ninety-one  to  eighty-two.  t  Twenty-seven  to  fifteen. 

283 


Constitutional  History  of  tljc  American  People 

The  House  should  abandon  the  restriction  of  sla- 
very within  Missouri.  Both  Houses  should  agree 
to  the  Thomas  amendment — the  compromise — 
excludinor  slaves  north  and  west  of  Missouri. 

Would  the  House  concur.?  Would  it  consent 
to  the  admission  of  another  slave  State  ?  It  seem- 
ed impossible  that  so  strong  a  majority  as  that 
which  had  voted  for  restriction  would  recede.  But 
moderation  prevailed,  Kinsey  undoubtedly  express- 
ing the  opinions  of  the  body  of  the  House — at 
neither  extreme — favoring  a  compromise  :  "  Now 
is  to  be  tested  whether  this  grand  and  hitherto 
successful  experiment  of  free  government  is  to  con- 
tinue, or,  after  more  than  forty  years'  enjoyment  of 
the  choicest  blessings  of  heaven  under  its  admin- 
istration, we  are  to  break  asunder  on  a  dispute 
concerning  a  division  of  territory.  Gentlemen  of 
the  majority  have  treated  the  idea  of  a  disunion 
with  ridicule ;  but,  to  my  mind,  it  presents  itself 
in  all  the  horrid,  gloomy  features  of  reality.  *  *  * 
On  this  question,  which  for  near[ly]  six  weeks  has 
agitated  and  convulsed  this  House,  I  have  voted 
with  the  majority.  But  I  am  convinced,  should  we 
persist  to  reject  the  olive-branch  now  offered,  the 
most  disastrous  consequences  will  follow.  These 
convictions  are  confirmed  by  that  acerbity  of  ex- 
pression arising  from  the  most  irritated  feelings, 
wrought  upon  by  what  our  Southern  brethren  con- 
ceive [the]  unkind,  unjust,  determined  perseverance 
of  the  majority,  and  to  those  I  now  beg  leave  to  ad- 
dress myself.  Do  our  Southern  brethren  demand 
an  equal  division  of  this  wide-spread,  fertile  region, 

2S4 


stubborn  Resistance  of  the  Free-Soilers 

this  common  property,  purchased  with  the  common 
funds  of  the  nation?  No;  they  have  agreed  to  fix 
an  irrevocable  boundary,  beyond  which  slavery  shall 
never  pass ;  thereby  surrendering  to  the  claims  of 
humanity  and  the  non-slave-holding  States,  to  the 
enterprising  capitalists  of  the  North,  the  Middle 
and  Eastern  States,  nine-tenths  of  the  country  in 
question.  In  rejecting  so  reasonable  a  proposition 
we  must  have  strong  and  powerful  reasons  to  jus- 
tify our  refusal.  *  *  *  Should  we  now  numerically 
carry  the  question,  it  will  be  a  victory  snatched 
from  our  brothers.  It  will  be  an  inglorious  tri- 
umph, gained  at  the  hazard  of  the  Union.  Hu- 
manity shudders  at  the  thought.  National  policy 
forbids  it.  It  is  an  act  at  which  no  good  man  will 
rejoice,  no  friend  of  his  country  can  approve." 
The  vote  was  called,  and  disclosed  that  compro- 
mise had  prevailed  over  restriction  by  a  majority 
of  three.*  Taylor,  unwilling  to  give  up  the  fight 
for  free  soil,  moved  to  strike  out  36°  30',  and 
exclude  slavery  from  all  soil  west  of  the  Missis- 
sippi, except  Louisiana,  Arkansas,  and  Missouri ; 
but  this  was  rejected.  The  bill  passed  both  Houses 
on  the  2d,  Maine  was  admitted  on  the  i5th,t  and 
the  people  of  Missouri  were  empowered  to  form 
a  constitution  and  a  State  government. 

On  the  12th  of  June  the  constitutional  conven- 


*  Ninety  to  eighty-seven. 

+  Massachusetts  had  consented  to  the  separation  of  Maine  on 
condition  that  it  should  be  admitted  to  the  Union  by  the  4th  of 
March,  1820.  See  the  Articles  of  Separation,  Sec.  i.,  in  Nash,  p. 
3  of  third  paging. 

285 


Coitsf  if  lit  Zonal  History  of  the  American  People 

tion  of  Missouri  assembled  at  St.  Louis,  and  com- 
pleted its  work  on  the  19th  of  July.  Many  of  the 
delegates  believed  that  Congress  had  usurped  its 
powers  in  the  enabling  act.  The  Constitution 
reflected  public  sentiment  in  the  Territory.  It 
sanctioned  slavery,  and  forbade  the  Legislature  to 
interfere  with  it.  The  clause,  which  originated 
with  Thomas  H.  Benton,*  forbade  emancipation 
without  the  consent  of  the  owners,  and  made  it 
the  duty  of  the  General  Assembly  as  soon  as 
possible  to  pass  whatever  laws  might  be  neces- 
sary to  prevent  free  negroes  or  mulattoes  from 
coming  to  the  State  or  settling  in  it,  under  any 
pretext  whatever.!  It  was  laid  before  Congress 
by  Scott,  on  the  i6th  of  November,  and  was  re- 
ferred to  a  select  committee.^ 

Lowndes  presented  its  report  a  week  later. 
The  committee  thought  that  the  provisions  of  the 
enabling  act  had  been  complied  with ;  whether 
wisely  or  liberally,  it  was  not  for  them  to  decide. 
Congress  could  not  well  anticipate  judicial  de- 
cisions by  interpreting  an  equivocal  phrase,  or 
by  deciding  on  the  powers  of  a  new  State,  and 
thus  add  the  weight  of  its  authority  to  an 
opinion  which  might  condemn  the  laws  and  con- 
stitutions of  old  as  well  as  sovereign  States. 
The  clause  in  the  Missouri  constitution  excluding 
free  negroes  and  mulattoes  might  be  construed  to 
apply  to  such  of  that  class  as  were  citizens  of  the 

*  Thirty  Years'  View,  Vol.  i.,  p.  8.  t  Art.  iii..  Sec.  26. 

\  Lowndes,  Sergeant,  of  Pennsylvania,  and  Smith,  of  Mary- 
land. 

286 


DiffiaUty  in  Defining  the  Federal  Constitution 

United  States,  and  thus  be  repugnant  to  the  fed- 
eral Constitution.  The  objectionable  clause  was  to 
be  found  in  the  laws  of  Delaware,*  and,  on  careful 
examination,  it  might  perhaps  be  applied  to  the 
large  class  of  free  negroes  and  mulattoes  who 
could  not  be  considered  to  be  citizens  of  any 
State.!  No  article  of  the  Constitution  of  the 
United  States  was  more  difficult  to  construe  than 
that  giving  to  the  citizens  of  each  State  the  privi- 
leges and  immunities  of  citizens  of  the  several 
States.  Too  laroe  a  construction  of  this  would 
completely  break  down  the  defensive  powers  of 
the  States  and  lead  directly  to  their  consolidation. 
The  constitutions  of  the  States  settled  this  much — 
that  a  State  has  the  right  to  discriminate  between 
the  white  and  the  black  man,  in  respect  both  to 
political  and  civil  privileges,  though  both  be  citi- 
zens of  another  State — giving  the  right  of  voting 
and  serving  on  juries  to  the  white,  refusing  it  to 
the  black.  The  Territorial  condition  ceased  when 
the  people  formed  a  State  government,  an  act 
which  made  them  sovereign  and  independent. 
Judicial  tribunals  must  then  determine  the  consti- 
tutionality of  laws.  A  decision  by  Congress  against 
the  constitutionality  of  a  law  passed  by  a  State  of 
which  it  had  authorized  the  establishment  could 
not  operate  directly  by  vacating  the  law,  nor  could 

*  Act  of  January  28,  181 1.  The  committee  might  have  cited 
similar  acts  in  other  States — Maryland,  1806;  Virginia,  January 
26,  1806  ;  South  Carolina,  December  20,  1800  ;  Kentucky,  February 
23,  1808. 

t  The  number  of  free  persons  of  color  in  1820  was  233,634. 

287 


Constitutional  History  of  the  American  People 

it  reduce  the  State  to  the  dependence  of  a  Territory. 
Therefore,  to  refuse  admission  to  the  State,  in  these 
circumstances,  would  be  to  refuse  to  extend  over 
it  that  judicial  authority  which  might  vacate  the 
obnoxious  law,  and  to  expose  all  the  interests  of 
the  government  within  that  State  to  a  Legislature 
and  a  judiciary  the  only  checks  on  which  had 
been  abandoned.  The  report  concluded  with  a 
brief  resolution  in  favor  of  the  admission  of  Mis- 
souri. 

Discussion  began  on  the  6th,  led  by  Lowndes, 
who,  though  in  feeble  health,  made  his  last  impor- 
tant speech  in  Congress,  which  was,  perhaps,  the 
most  impressive  delivered  throughout  the  debate. 
Congress,  he  maintained,  had  already  admitted  the 
State  by  the  enabling  act.  In  the  case  of  Indiana, 
five  years  before.  Congress,  for  the  first  time,  added 
a  formal  act  of  admission  to  the  enabling  act,  as 
a  general  notice  to  the  members  of  the  Union. 
After  the  enabling  act  for  Ohio  no  resolution  for 
admission  was  passed,  but  an  act,  necessary  in 
its  nature,  to  extend  the  jurisdiction  of  the  United 
States  courts  over  the  new  State.  That  the 
House,  in  passing  the  Missouri  enabling  act,  fully 
intended  to  confer  the  rights  of  a  State  was  evi- 
dent from  an  amendment  offered  by  Taylor,  that 
if  its  constitution  be  approved  by  Congress  the 
Territory  should  be  admitted  into  the  Union  upon 
the  same  footing  as  the  original  States,  which  had 
been  defeated  by  a  large  majority,*  the  vote  signi- 

*  One  hundred  and  twenty-five  to  forty-nine. 

28y 


The  National  Constitution  Dominant 

fying  that  Missouri  was  made  a  State  without  the 
condition  that  Congress  approve  its  constitution. 
The  clause  in  the  constitution  respecting  the  ex- 
clusion of  free  persons  of  color  was  objectionable 
to  some  members.  Whether  or  not  it  was  con- 
stitutional should  be  left  for  the  Supreme  Court  to 
determine.  Few  of  the  free  blacks  in  the  country 
were  citizens  in  their  respective  States.  The 
clause  might  be  construed  as  excluding  the  few 
who  were.  They  were  excluded  by  the  laws  of 
some  of  the  other  States.  Why  not  attack  these 
laws  }  Why  discriminate  against  Missouri  alone  } 
When  Tennessee  sought  admission,  it  was  ob- 
jected that  its  constitution  was  incompatible 
with  that  of  the  United  States;  but  the  ob- 
jection was  fully  answered,  that,  as  the  national 
Constitution  is  paramount,  the  provisions,  if  any, 
in  that  of  Tennessee  could  be  of  no  effect.  Mis- 
souri was  already  exercising  all  the  rights  of  a 
sovereign  State. 

Sergeant  replied  at  some  length  to  Lowndes. 
If  Missouri  was  a  State,  why  were  her  Senators 
and  Representatives  kept  waiting  at  the  doors 
of  Congress }  Why  was  the  constitution  of  Mis- 
souri submitted  to  a  committee  of  the  House  ."^ 
Certainly  Missouri  would  not  be  a  State  until  so 
admitted  by  resolution  of  Congress.  Its  people 
were  authorized  to  form  a  constitution  not  repug- 
nant to  that  of  the  United  States.  Who  was  em- 
powered to  decide  whether  they  had  done  so  ?  The 
fault  was  with  Missouri,  not  with  Congress.  The 
House  should  be  satisfied  that  Missouri  had  com- 

I. T  280 


Constitutional  History  of  the  American  People 

plied  with  the  conditions  prescribed :  a  govern- 
ment republican  in  form;  a  constitution  not  re- 
pugnant to  that  of  the  United  States.  The 
degree  of  repugnancy  was  not  involved.  Whether 
all  or  a  part  of  the  constitution  submitted  be  re- 
pugnant, Congress  must  insist  on  the  conditions. 
It  alone  could  be  the  judge.  The  question  was 
not  one  for  the  Supreme  Court  to  decide.  The 
Constitution  of  the  United  States  must  not  be 
violated.  Congress  is  peculiarly  and  emphatically 
its  sworn  guardian.  If  Missouri  had  provided 
that  no  free  white  citizen  of  the  United  States 
should  be  permitted  to  come  and  reside  in  the 
State,  what  member  would  consent  to  its  admis- 
sion .?  In  North  Carolina,  in  New  York,  in  Mas- 
sachusetts, free  persons  of  color  were  citizens. 
The  right  of  citizenship  did  not  imply  the  right 
to  vote — as  in  some  States  more  than  half  the 
white  men  did  not  vote  because  they  were  not 
freeholders,  yet  no  one  denied  that  they  were 
citizens  of  these  States.  The  simple  right  of  loco- 
motion was  indispensable  to  citizenship,  and  that 
was  all  that  was  now  asked. 

But  the  question  involved  more  than  the  right 
of  locomotion ;  it  involved  the  citizenship  of  free 
persons  of  color.  Were  they  citizens?  For  the 
first  time,  the  civil  and  political  rights  of  these 
people  without  a  country,  at  this  time  more  than 
three  hundred  thousand  in  number,  were  the 
theme  of  a  debate  in  Congress,  the  issue  of  which 
was  to  decide  the  admission  of  a  State  into  the 
Union,  and  possibly  the  fate  of  the  Union  itself. 

290 


The  Pariahs  of  Our  Early  Republic 

No  more  curious  or  more  unexpected  turn  in 
public  affairs  could  have  arisen  than  this  respecting 
a  class  of  people  unwelcome  in  every  State,  ex- 
cluded from  many,  refused  all  social  relations 
with  the  whites  in  the  free  States ;  denied,  under 
severe  penalties,  all  association  with  the  slaves  in 
the  slave  States ;  excluded  from  enrolment  in  the 
militia;  incapable  of  serving  as  jurors,  or,  in  most 
States,  as  witnesses  against  a  white  man ;  for 
whom  no  schools  or  hospitals  existed;  and  who 
were,  as  a  class,  considered  to  be  only  criminals  at 
large.  In  spite  of  increasingly  rigorous  laws  against 
emancipation,  this  class  had  increased  almost  phe- 
nomenally. When  the  Constitution  was  adopted, 
it  numbered  less  than  sixty  thousand.*  At  the 
opening  of  the  century  it  was  more  than  a  hun- 
dred thousand.!  At  the  tim.e  of  the  admission  of 
Louisiana,  nearly  ninety  thousand  more.|  It  had 
increased  nearly  forty  thousand  since  then,  yet 
there  was  little  amelioration  of  law  or  public  prej- 
udice. The  letter  of  the  law  and  the  constitution 
enrolled  them  as  citizens  in  New  York,  where 
twenty-nine  thousand  resided;  in  Massachusetts, 
with  less  than  seven  thousand; §  in  North  Caro- 
lina, with  half  as  many  as  New  York.||  There 
were  few  slaves  in  the  Louisiana  country  when 
Louisiana  asked   admission  into   the  Union,  yet, 


*  In  1790,  59,527.  t  In  1800,  108,435. 

X  In  1810,  186,446.     Louisiana  was  admitted  in  1812. 
§  In   1820  there  were  6740  in  Massacliusetts  ;  the  area  of  the 
State  is  8315  square  miles. 

ii  In  1820  North  Carolina  had  14,712  free  persons  of  color. 

291 


Coiislilittioiial  History  of  the  American  People 

by  the  treaty,  this  form  of  property  must  be  pro- 
tected, and  the  few  determined  the  character  of 
the  new  State.  Only  three  States  were  empha- 
sized, in  1820,  as  having  conferred  citizenship  on 
free  persons  of  color,  and  very  few  of  these  per- 
sons, it  is  believed,  actually  exercised  in  them 
both  civil  and  political  rights.  Yet  the  rights  of 
this  handful  of  despised  free  negroes  were  to 
turn  the  scale  in  the  admission  of  Missouri  and 
put  all  federal  relations  in  clearer  light.  Had 
there  been  no  free  persons  of  color,  the  Missouri 
struggle  would  have  ceased  with  the  passage  of 
the  enabling  act.  Had  there  been  no  slaves, 
there  would  have  been  no  struggle.  Had  no 
State  already  conferred  the  rights  of  citizenship 
on  some  free  negroes,  the  constitution  submitted 
by  Missouri  would  have  raised  no  objections. 

Should  a  new  State  be  permitted  to  exclude 
the  citizens  of  another  State?  This  was  the  new 
issue — a  question  of  States'  rights,  of  federal  rela- 
tions. Has  Congress  the  right  to  decide,  finally, 
whether  the  constitution  of  a  proposed  State  con- 
flicts with  the  constitution  and  laws  of  another 
State,  or  with  the  national  Constitution,  and  refuse 
it  admission ,''  The  question  was  sure  to  arise, 
sooner  or  later,  in  the  republic.  It  came  now, 
suddenly,  and  it  must  be  answered.  With  union 
or  disunion }  There  seemed  no  o^round  for  com- 
promise.  For  the  slave  had  defenders,  as  property 
always  finds  defenders ;  but  for  the  free  negro, 
who  would  speak  ? 

It  was  denied  that  he  was  in  any  State  a  citizen 

292 


Dangerous  Proclivities  of  the  Free  Negro 

in  full  enjoyment  of  civil  rights.  In  North  Carolina 
he  could  not  give  testimony  in  any  case  in  which 
a  white  man  was  a  party.  In  Massachusetts  his 
marriage  with  a  white  woman  was  null  and  void. 
In  New  York  he  could  not  serve  as  a  juror.  As 
each  State  had  the  right  to  prescribe  the  qualifica- 
tions of  its  own  citizens,  should  not  Missouri  be 
permitted  to  do  the  same  }  Slavery  was  permitted 
in  Missouri.  In  the  Southern  States  free  persons 
of  color  were  considered  the  most  dangerous  class 
possible  in  a  community.  Elevated  just  enough 
to  have  some  sense  of  liberty,  they  had  not  the  ca- 
pacity to  estimate  or  enjoy  all  its  rights,  and,  be- 
ing between  two  societies,  above  one  and  below 
the  other,  they  were  in  a  most  dissatisfied  state. 
"  They  are  themselves  perpetual  monuments  of  dis- 
content, and  firebrands  to  the  other  class  of  their 
own  color."  As  they  were  not  citizens  in  any 
State,  like  white  men,  the  constitution  of  Missouri 
did  not  conflict  with  that  of  the  United  States  in 
excluding  them.*  Moreover,  free  negroes  and  mu- 
lattoes  were  not  citizens,  in  the  meaning  of  that 
word  as  used  in  the  Constitution  of  the  United 
States.  They  were  not  entitled  to  its  protection. 
Whatever  privileges  they  possessed  were  surely 
local  in  character.  At  the  time  of  the  formation 
of  the  Constitution  negroes  ranked  with  Indians, 
were  not  taxed,  and  were  not  conceived  as  belonor- 
ing  to  the  class  of  persons  for  whom  the  govern- 
ment, either  State  or  federal,  was  organized.! 

*  Barbour,  of  Virginia,  December  8,  1820, 
t  McLane,  of  Delaware,  December  12,  1820. 

293 


Constitutional  History  of  the  American  People 

In  reply  it  was  said  that  in  the  Revolution  many 
persons  of  color  bore  arms,*  and  entered  the  ranks 
as  freemen  with  the  whites.  Many  were  made 
free  by  the  States,  as  an  inducement  to  enlist.t  A 
black  regiment  from  Rhode  Island  won  fame  for 
the  gallant  defence  of  Red  Bank.  If  persons  of 
color  were  intentionally  excluded  by  the  national 
Constitution,  why  did  it  not  read,  "  We,  the  white 
people  of  the  United  States"?  As  to  the  mar- 
riage law  of  Massachusetts,  it  interdicted  the 
marriage  of  a  white  man  with  a  black  woman,  and 
therefore  applied  to  both  races  alike.  Exclusion 
from  the  militia,  in  that  State,  proved  that  they 
were  in  the  enjoyment  of  the  right,  and  that  a 
specific  law  became  necessary  to  deprive  them  of 
it.  All  the  broad  essential  rights  of  citizenship 
were  theirs — to  hold  and  convey  property,  trial 
by  jury,  the  writ  of  habeas  corpus,  the  elective 
franchise.  By  the  laws  and  the  Constitution 
they  were  considered  as  citizens  equally  with  the 
whites.  For  forty  years  they  had  been  in  the  con- 
stant exercise  of  these  rights.  To  vote  in  the  elec- 
tion of  town,  county,  and  State  officers,  the  same 
qualifications  of  residence  and  property  were  re- 
quired from  them  as  from  the  whites,  and,  hav- 
ing these  qualifications,  they  had  a  voice  in  the 
election  of  all  State  officers.     Had  they,  then,  no 

*  See  the  first  ordinance  of  Congress  relative  to  free  negro 
troops,  January  i6,  1776;  Journal  of  Congress,  Vol.  ii.  (Folvvell's 
edition),  p.  27. 

t  See  Debates  in  the  North  Carolina  Constitutional  Convention 
of  1835,  pp.  351-357;  also  citations  by  Curtis  in  his  dissenting 
opinion  in  Scott  vs.  Sandford,  19  Howard,  p.  393. 

294 


No  Discrimination  in  the  National  Constitution 

federal  rights  ?  The  national  Constitution  was 
made  for  the  benefit  of  the  people  inhabiting  the 
States  at  the  time,  and  the  convention  of  1787  did 
not  take  into  consideration  the  complexion  of  the 
citizens  included  in  the  compact.  The  black 
citizens  of  Massachusetts  were  as  directly  repre- 
sented as  the  whites  in  the  process  initiatory  to 
the  federal  compact ;  from  their  votes,  in  common 
with  those  of  the  whites,  emanated  the  convention 
of  Massachusetts  by  which  the  federal  Constitu- 
tion was  ratified.  They  were  directly  represented 
in  Congress,  for  they  participated  in  the  election 
of  every  Massachusetts  member  on  the  floor.  In 
one  district  the  qualified  voters  among  them  had 
actually  decided  the  election  of  a  member  of  the 
sixteenth  Congress.  Did  not  these  facts  contro- 
vert the  claim  that  they  did  not  exercise  federal 
rights  in  common  with  other  citizens.'*  In  at- 
tempting to  exclude  them,  Missouri  was  palpably 
violating  the  Constitution  of  the  United  States.* 
On  the  following  day  the  vote  was  taken,  and 
the  House  rejected  the  resolution  for  the  admission 
of  Missouri  by  a  vote  of  ninety-three  to  seventy- 
nine. 

A  month  passed  before  the  struggle  was  re- 
newed, and  then  unexpectedly.  Three  memorials 
of  the  Senate  and  House  of  Representatives  of 
Missouri,  respecting  the  public  lands,  were  pre- 
sented on  the  I  ith  of  January,  182 1,  and,  next  day, 
Cobb,  of  Georgia,  moved  to  correct  the  journal  so 

*  Eustis,  of  Massachusetts,  December  12,  1820. 
295 


Constitutional  Historv  of  the  American  People 

as  to  read  "  the  State  of  Missouri."  A  short,  sharp 
debate  followed ;  the  vote  was  a  tie,  and,  by  the 
vote  of  the  Speaker,  Cobb's  motion  was  rejected. 
Parker,  of  Virginia,  was  quickly  on  his  feet.  As 
the  House  had  refused  to  acknowledge  Missouri 
to  be  a  State,  and  as  she  must  be  a  Territory  if 
not  a  State,  he  moved  to  correct  the  journal  by 
inserting  the  words  "  Territory  of "  before  "  Mis- 
souri." Taylor,  the  Speaker — author  of  the  lately 
defeated  restriction — remarked  that  the  rules  made 
it  the  Speaker's  duty  to  examine  and  correct  the 
journal  before  it  was  read.  In  the  present  instance 
he  had  thought  it  proper  so  to  correct  the  journal 
that  it  should  not  be  taken  either  to  affirm  or  deny 
that  Missouri  was  a  State,  this  being  a  question 
on  which  the  House  was  greatly  divided.  The 
question,  said  Parker,  is  not  one  of  mere  form.  If 
Missouri  was  a  Territory,  and  the  House  had  voted 
she  was  not  a  State,  why  not  call  her  a  Territory } 
"  I  say  she  is  a  State,  and  were  I  a  citizen  of  that 
State  I  would  never,  at  your  suggestion,  strike 
out  that  clause  in  the  constitution  to  which  ob- 
jection has  been  made.  If  I  found  it  convenient 
to  myself  to  do  so,  I  would ;  but  I  would  not  do 
it  on  your  recommendation,  even  for  the  impor- 
tant boon  of  being  admitted  into  the  Union.  I 
would  rather  be  trodden  down  by  the  armies  of 
the  North  and  East,  and,  if  you  could  get  them, 
from  the  South,  than  yield  this  point.  *  *  ^^  If  ever 
on  earth  a  people  has  been  maltreated,  it  is  this 
people."  By  a  vote  of  one  hundred  and  fifty  to 
four,  the  House  rejected  Parker's  motion  to  desig- 

296 


Missouri  Neither  State  nor  Territory 

nate  Missouri  as  a  Territory.  In  the  face  of  these 
heavy  majorities,  that  she  was  neither  State  nor 
Territory,  the  question  was — What  was  she  ? 

Eustis,  on  the  24th,  attempted  to  surmount  the 
obstacle  in  her  path  by  proposing  a  resolution 
that  she  should  be  admitted  on  a  certain  day, 
provided  the  objectionable  clause  in  her  consti- 
tution be  expunged,*  but,  as  the  same  question 
would  probably  be  brought  up  by  a  motion  to 
amend  the  resolution  in  the  Senate,  Lowndes  sug- 
gested that  nothing  would  be  gained  by  this 
course,  and  the  Eustis  resolution  was  rejected  by 
a  large  majority.  In  the  Senate,  meanwhile,  the 
Missouri  question  had  been  exhaustively  discussed 
and  a  different  decision  reached.  On  the  29th  of 
November  the  committee  to  whom  the  proposed 
constitution  was  referred  reported  a  resolution 
declaring  Missouri  admitted,  which  passed  to  a 
second  reading.  Nearly  all  who  spoke  on  the 
subject  from  this  time  declared  that  every  mem- 
ber's mind  was  made  up,  and  further  debate  use- 
less. Eaton,  of  Tennessee,  on  the  6th  of  Decem- 
ber, offered  a  proviso,  that  nothing  in  the  act  for 
admission  should  be  construed  as  giving  the  as- 
sent of  Congress  to  any  provisions  in  the  consti- 
tution of  Missouri,  if  any  there  might  be,  which 
contravened  the  clause  in  the  Constitution  of  the 
United  States  declaring  the  equality  of  right  of 
citizens  of  each  State  to  all  privileges  and  im- 
munities of  citizens  in  the  several  States.     This, 

*  Art.  iii.,  Sec.  26,  m  re  free  negroes,  etc. 
297 


Consfitntional  Hisioy  of  the  American  People 

at  least,  guarded  Congress,  and  postponed  the  day 
of  reckoning.  Various  provisos  in  the  same  direc- 
tion were  submitted  during  the  discussion.  On  the 
7th,  Eaton's  proviso  was  rejected  by  a  majority  of 
three,*  and  the  discussion  of  the  committee's  reso- 
lution was  resumed.  Smith,  of  South  Carolina,  in 
a  long  speech,  cited  all  the  precedents  to  show 
that  no  condition  had  been  imposed  on  any  of  the 
ten  new  States  admitted.  In  the  constitutions  of 
all  of  them  only  free  white  males  could  be  elec- 
tors, yet  Congress  had  never  objected  to  the  dis- 
crimination, if  there  was  any.  More  than  this, 
New  Hampshire  and  Vermont  excluded  the  negro 
from  the  militia,  and  Vermont  empowered  the 
select -men  of  the  towns  to  exclude,  at  their  dis- 
cretion, not  only  negroes  and  mulattoes,  but 
citizens  of  any  description,  male  or  female,  of 
other  States.!  The  naturalization  laws  of  the 
United  States  extended  to  white  persons  only, 
and  Massachusetts  excluded  all  nes^roes  not  sub- 
ject  to  the  Emperor  of  Morocco,  under  penalty  of 
being  whipped. |  New  York  made  provision  for 
the  exclusion  of  undesirable  inhabitants,  with  pen- 
alty of  fine,  imprisonment,  and  whipping.§  Con- 
necticut had  a  similar  law,||  and  its  recent  con- 
stitution denied  citizenship  to  free  negroes  and 
mulattoes.^ 

Was  not  this  mass  of  evidence  conclusive  that 

••'  Twenty-four  to  twenty-one. 
t  Vermont,  act  of  November  6,  1801. 
X  Massachusetts,  act  of  March  6,  1788. 
?  New  York,  act  of  April  8,  1801. 
II  1792.  Tl  Constitution,  1818. 

298 


Missouri  and  the  Privileges  of  Free  Negroes 

Missouri  only  followed  precedent  in  excluding 
whom  she  did  not  want,  and  that  the  exclusion 
was  no  more  a  discrimination  than  the  constitu- 
tions and  laws  of  the  older  States  ?  Holmes,  who 
had  recently  taken  his  seat  as  a  Senator  from 
Maine,  argued  that  the  privileges  and  immunities 
of  citizens  were  nowhere  extended  to  free  persons 
of  color  by  the  Constitution  of  the  United  States 
nor  by  the  laws  of  Congress;  that  they  were  con- 
ferred by  the  States  alone ;  that  Missouri  had  not 
conferred  them;  and,  therefore,  that  black  citizens 
of  other  States  would  acquire  no  other  privileges 
and  immunities  than  her  own  black  population. 
This  part  of  the  population  being  excluded,  the 
black  citizens  of  other  States  might  be  excluded 
also. 

On  the  nth  Eaton  again  offered  his  rejected 
resolution.  Morrill,  of  New  Hampshire,  cited 
cases  in  Vermont,  New  Hampshire,  and  Massa- 
chusetts where  the  privileges  and  immunities  of 
citizenship  had  been  exercised  by  free  men  of 
color,  and  reasoned  that  these  alone,  though  few, 
should  be  sufficient  to  reject  the  admission  of 
Missouri.  This  time  Eaton's  amendment  was 
carried.* 

The  Senate  resolution  was  taken  up  in  the  House 
seven  weeks  latent  Clay  at  once  declared  for  it. 
Lowndes,  Randolph,  Barbour,  and  others  from 
slave-holding  States,  announced  with  equal  prompt- 
ness that  they  should  vote  against  it.    Foot,  of  Con- 

*  Twenty-six  to  eighteen.  t  January  29,  1821. 

299 


Const iUitional  Histoiy  of  ihe  American  People 

necticLit,  proposed  Eustis's  resolution  to  expunge. 
Six  other  propositions  were  submitted,  but  all,  in- 
cluding Foot's,  were  rejected  by  large  majorities.* 
The  House  would  neither  adopt  the  resolution 
of  the  Senate  nor  one  of  its  own.  All  efforts  at 
amendment  had  failed.  Missouri  was  left — neither 
a  State  nor  a  Territory.  At  this  point  Clay,  hop- 
ing to  effect  some  compromise,  moved  to  refer  the 
Senate  resolution  to  a  special  committee  of  thir- 
teen ;  it  was  appointed,!  with  himself  as  chairman, 
and,  on  the  loth,  made  its  report.  It  was  nearly 
unanimous  that  no  other  conditions  than  those 
already  specified  in  the  enabling  act  should  be 
imposed.  The  settlement  of  the  question  ought 
not  to  be  disturbed.  As  to  the  clause  in  the  Mis- 
souri constitution  affecting  free  persons  of  color, 
the  same  diversity  of  opinion  prevailed  in  the 
committee  as  had  prevailed  in  the  House.  It 
thought,  therefore,  that  neither  side  abandoning 
its  opinion,  a  compromise  could  be  effected  by 
amending  the  Senate  resolution:  Missouri  should 
be  admitted  into  the  Union  upon  the  fundamental 
condition  that  she  should  never  pass  a  law  pre- 
venting any  description  of  persons  from  going  to 
and  settlinor  in  the  State  who  were,  or  who  miorht 
become,  citizens  of  any  State  in  the  Union.  When, 
by  a  solemn   public   act,  the   Legislature  of  Mis- 

*  Mostly  on  February  ist. 

t  The  committee  consisted  of :  Clay,  Kentucky ;  Eustis,  Massa- 
chusetts ;  Smith,  Maryland  ;  Sergeant,  Pennsylvania ;  Lowndes, 
South  Carolina;  Ford,  New  York;  Archer,  Virginia;  Hackle)^ 
New  York ;  S.  Moore,  Pennsylvania;  Cobb,  Georgia;  Tomlinson, 
Connecticut;  Butler,  New  Hampshire;  Campbell,  Ohio. 

300 


The  Truth  Concerning  Clay's  Compromises 

souri,  before  the  4th  of  November,  should  sub- 
scribe to  this  condition  and  communicate  its 
assent  to  the  President,  he  should  proclaim  the 
fact,  and  the  admission  of  the  State  should  there- 
by be  complete  without  further  action  of  Congress. 

This  was  the  compromise  of  1820,  with  which 
the  name  of  Henry  Clay  is  associated.  Contrary 
to  the  notion  which  has  long  prevailed,  his  part  in 
the  series  of  compromises  of  that  year  bore  little 
upon  the  establishment  of  the  line  of  36°  30',  and 
less  upon  the  efforts  of  the  Free-soilers  to  exclude 
slavery  from  the  new  States.  His  was  the  com- 
promise on  admission,  not  on  slavery.  Measured 
by  his  own  idea  of  State  sovereignty,  the  solemn 
public  act  which  should  be  exacted  from  the  Mis- 
souri Legislature  was  not  beyond  repeal  by  a  sub- 
sequent Legislature,  and,  twenty  years  later,  it  was 
practically  repealed  by  the  laws  of  the  State  pro- 
hibiting the  immigration  of  free  negroes,  under 
heavy  penalties,*  followed  by  a  more  severe  act 
three  years  later.  But  Clay's  compromise  was  an 
immediate  solution  of  the  sectional  question  which 
now  threatened  the  dissolution  of  the  Union. 

On  the  12th  the  House  took  up  the  report,  in  a 
debate  which  went  over  familiar  ground.  After 
rejecting  several  proposed  amendments,  the  House, 
by  a  vote  of  eighty -three  to  eighty,  rejected  the 
Senate  resolution  and  Clay's  amendment.  On  the 
13th  the  vote  was  reconsidered,  and  the  commit- 
tee's report  was  again  before  the  House.     General 

*  Missouri,  acts  of  February  23,  1843;  February  16,  1846. 

^01 


Constitutional  History  of  the  American  People 

Pinckney,  of  South  Carolina,  produced  some  new 
evidence  in  favor  of  Missouri.  The  objectionable 
clause  in  its  constitution,  he  declared,  was  not  re- 
pugnant to  the  Constitution  of  the  United  States. 
"  It  appears  by  the  journal  of  the  convention  that 
formed  the  Constitution  of  the  United  States," 
said  he,  "  that  I  was  the  only  member  of  that  body 
that  ever  submitted  the  plan  of  a  constitution  com- 
pletely drawn  in  articles  and  sections;  and  this 
having  been  done  at  a  very  early  stage  of  their 
proceedings,  the  article  on  which  now  so  much 
stress  is  laid,  and  on  the  meaning  of  which  the 
whole  of  this  question  is  made  to  turn,  and  which 
is  in  these  words,  'the  citizens  of  each  State  shall 
be  entitled  to  all  privileges  and  immunities  in  every 
State,'  having  been  made  by  me,  it  is  supposed  I 
must  know,  or  perfectly  recollect,  what  I  meant  by 
it.  In  answer,  I  say  that,  at  the  time  I  drew  that 
Constitution,  I  perfectly  knew  that  there  did  not 
then  exist  such  a  thing  in  the  Union  as  a  black  or 
colored  citizen,  nor  could  I  then  have  conceived  it 
possible  such  a  thing  could  ever  have  existed  in  it ; 
nor,  notwithstanding  all  that  is  said  on  the  subject, 
do  I  now  believe  one  does  exist  in  it."*    Pinckney 

*  Pinckney 's  belief  that  he  submitted  such  a  plan  to  the  federal 
convention  is  indisputable.  It  appears  by  the  journal  and  Madi- 
son's note  that  he  submitted  a  plan  on  May  29th.  That  it  was  not 
the  Constitution  as  adopted,  and  that  the  Constitution  contains 
provisions  at  variance  with  Pinckney 's  ideas,  are  dwelt  on  by 
Madison  (Elliot,  Vol.  v.,  p.  578).  There  is  no  evidence,  other 
than  the  above  speech,  that  Pinckney  was  the  author  of  the 
article  he  quotes.  He  was  speaking  from  memory,  of  ofie  provi- 
sion made  in  a  constitution  thirty-four  years  before.  The  inten- 
tion of  a  constitutional  convention  is  usually  difficult  to  fix,  and 

302 


Firm  Stand  of  the  Rest  net  ionists 

then  proceeded  to  prove  that  free  persons  of  color 
were  not  citizens  of  the  United  States;  that  the 
race  had  never  possessed  the  rights  of  white  men ; 
that  it  was  incapable  of  exercising  them;  and  that 
its  exclusion  from  citizenship  conformed  to  the 
course  of  history  and  the  will  of  God. 

At  this  stage  of  the  question  the  restrictionists 
were  accused  of  breach  of  faith — that  they  had 
secured  Maine  and  would  not  keep  their  word  with 
Missouri.  There  is  no  doubt  that  the  Free-soilers 
had  not  changed  their  opinions.  They  did  not  in- 
terpret the  admission  of  Maine  as  free  soil  as  an 
obligation  on  them  to  support  slavery  in  Missouri. 
They  believed  that  they  had  broken  the  combina- 
tion of  the  admission  of  the  two  States  in  one  bill. 
They  wished  now  to  exclude  slavery  from  Mis- 
souri, and  from  all  other  territory  of  the  United 
States,  forever.  In  vain  Clay  pleaded  for  his  reso- 
lution. It  was  again  rejected,  and  by  a  larger  vote 
than  before.* 

The  day  for  counting  the  electoral  vote  for  Presi- 
dent and  Vice-President  was  approaching.  Mis- 
souri had  chosen  three  electors,  and  their  votes  had 
been  received  by  the  President  of  the  Senate. 
Clay,  on  the  4th  of  February,  in  order  to  antici- 
pate and  allay  a  possible  tumult,  proposed  a  reso- 

that  of  one  member,  in  shaping  a  particular  provision,  is  usually- 
merged  in  a  mass  of  opinions  difficult  to  separate.  Once  adopted, 
a  constitution  depends  for  its  interpretation  as  much  on  current 
necessity  as  on  the  original  intentions  of  its  members.  This  is, 
theoretically,  a  question  for  the  courts;  but,  practically,  it  is  one 
for  politics  and  administration. 
*  Eighty-eight  to  eighty-two. 

3°S 


Const Hutional  History  of  the  American  People 

lution  relative  to  the  counting  of  the  vote,  that  if 
any  objection  be  made  to  the  vote  of  Missouri,  the 
President  of  the  Senate  should  declare  the  result 
that  would  follow  if  its  votes  were  counted  and  if 
they  were  not  counted.  This  method  of  reaching 
what  Randolph  at  once  called  a  special  verdict 
precipitated  another  debate,  but  was  carried,  though 
with  apprehension,  in  both  Houses.*  Thus  a  pos- 
sible omission  in  the  Constitution  was  temporarily 
supplied.  As  the  electoral  vote  stood,  Monroe 
and  Tompkins  were  chosen,  and  the  vote  of  Mis- 
souri could  not  change  the  result.  But  if  its  vote 
was  counted  it  must  be  as  that  of  a  State.  All 
who  claimed  this  to  be  the  condition  of  Missouri, 
therefore,  insisted  on  the  inclusion  of  its  three 
electoral  votes. 

The  electoral  vote  was  counted  on  the  14th. 
Both  Houses,  as  the  Constitution  requires,  assem- 
bled in  the  Representatives'  diamber,  and  the 
count  was  begun  under  the  usual  forms.  As  the 
vote  of  Missouri  was  announced,  Livermore,  a 
member  from  New  Hampshire,  arose,  and,  amid 
some  confusion,  objected  to  receiving  it  because 
Missouri  was  not  a  State.  A  tumult  began,  and  all 
likeness  to  a  deliberative  body  vanished.  Above 
the  din  of  voices  a  Senator  was  heard  to  move  that 
the  Senate  withdraw,  and  the  House  was  quickly 
left  alone  to  wrangle  the  matter  into  some  conclu- 
sion. After  more  than  an  hour  of  confusion  such 
as  can  arise  only  in  a  great  parliamentary  body, 

*  In  the  House  of  Representatives,  February  4th,  by  a  vote  of 
ninety  to  sixty-seven.     In  the  Senate,  February  9th. 

304 


A  Straining  of  Parliamentary  Procedure 

Floyd,  of  Virginia,  succeeded  in  submitting  a  res- 
olution that  Missouri  was  a  State  and  its  vote 
should  be  counted.  Something  must  be  done. 
The  House  was  at  the  brink  of  a  precipice.  An- 
other step  might  hurl  the  government  into  de- 
struction. "  I  have  gone  as  far  as  I  can  go  in  the 
way  of  compromise,"  said  he;  "if  there  is  to  be  a 
compromise  beyond  that  point,  it  must  be  at  the 
edge  of  the  sword."  Randolph  went  back  to  what 
he  called  "  first  principles,"  and  advanced  the  ex- 
traordinary notion  that  the  Electoral  College  was 
as  independent  of  the  House  as  the  House  was 
independent  of  the  College,  and  that  each  had  the 
right  to  determine  the  qualifications  of  its  own 
members.  The  House  had  only  a  ministerial 
office  in  counting  the  votes.  But  this  set  of 
"  first  principles "  appeared  to  be  of  Randolph 
rather  than  of  the  Constitution.  Clay  came  to 
the  rescue  with  a  pacific  motion  to  lay  Floyd's 
resolution  on  the  table  and  proceed  with  the 
count.  This  at  last  prevailed,*  and  a  message 
was  sent  to  the  Senate  that  the  House  was  pre- 
pared to  receive  it,  "  for  the  purpose  of  continuing 
the  enumeration  of  the  votes  of  the  electors  for 
President  and  Vice-President." 

The  Senate  accordingly  again  filed  in,  resumed 
its  seat,  and  the  President,  in  pursuance  of  the  reso- 
lution adopted  by  both  Houses,  announced  that 
were  the  vote  of  Missouri  to  be  counted  the  result 
would  be  two  hundred  and  thirty -one  votes  for 

*  By  a  vote  of  one  hundred  and  three. 


Cmst/tiitional  History  of  the  American  People 

Monroe  for  President  and  two  hundred  and  eigh- 
teen for  Tompkins  for  Vice  -  President.  If  not 
counted,  each  would  receive  tliree  less.  In  either 
case,  Monroe  and  Tompkins  had  a  majority  of  the 
electoral  vote. 

Before  the  announcement  was  finished,  Floyd 
was  inquiring  whether  the  vote  of  Missouri  was 
counted.  His  voice  was  drowned  by  cries  of  "  Or- 
der! Order!"  Randolph  arose.  The  cries  be- 
came louder.  The  Speaker  pronounced  Randolph 
out  of  order  and  invited  him  to  take  his  seat.  He 
did  not  obey.  Members  were  screaming  that  Ran- 
dolph be  heard  and  that  he  sit  down.  Order  was 
restored;  the  President  of  the  Senate  concluded 
his  announcement  of  the  result  of  the  vote,  and 
Randolph  again  addressed  the  chair.  The  confu- 
sion increased ;  the  Senate  withdrew,  and  the 
House  was  called  to  order.  Randolph  was  still 
standing  and  addressing  the  chair.  Few  could 
hear  him  above  the  noise.  There  had  been  no 
election,  he  shouted,  because  the  whole  electoral 
vote  had  not  been  counted.  He  was  writing  reso- 
lutions to  this  effect  when,  amid  great  excite- 
ment, the  House  adjourned.  The  counting  of  the 
electoral  vote  was  evidence  that  Missouri  was  not 
a  State.  Happily  the  decision  did  not  turn  on  its 
three  votes.  It  was  an  inopportune  time  for  a  dis- 
puted election. 

On  the  next  day,  Clark,  of  New  York,  moved 
that  Missouri  be  admitted  on  the  first  Monday  in 
December,  provided,  before  that  time,  the  objec- 
tionable clause  in  its  constitution  be  expunged. 

306 


I 


4 


Clap's  Efforts  for  Peace 

On  Clay's  motion,  this  resolution  was  laid  on  the 
table  without  discussion.  It  had  been  proposed 
before.  What  ground  for  hope  was  there  that  it 
would  succeed  now?  Brown,  of  Kentucky,  on  the 
2ist,  put  into  a  resolution  which  he  submitted  the 
ideas  of  many  who  were  accusing  the  restriction- 
ists  of  a  breach  of  faith.  The  enabling  act  for 
Missouri  should  be  repealed.  This  would  bring 
Congress  back  to  the  place  of  beginning.  Would 
another  act  be  framed  with  a  clause  prohibiting 
slavery  from  any  part  of  the  Western  country } 
The  pro-slavery  men  would  thus  be  able  to  test 
the  integrity  of  the  restrictionists.  But  the  House 
decided  not  to  take  up  the  resolution. 

Meanwhile  another  effort  for  peace  was  in  prog- 
ress, and,  on  the  2 2d,  Clay  moved  for  the  appoint- 
ment of  a  grand  joint  committee,  and  that  the 
House  elect  twenty-three  members  by  ballot.  Not 
until  the  24th  was  its  membership  settled.  On 
this  day  the  Senate  concurred  and  appointed  seven 
members.* 

*  The  committee  consisted  of: — Members  of  the  House — Clay, 
Kentucky;  Cobb,  Georgia ;  Hill,  Maine;  Storrs,  New  York;  Cocke, 
Tennessee;  Rankin,  Mississippi;  Archer,  Virginia  ;  Brown,  Ken- 
tucky; Eddy,  Rhode  Island;  P^ord,  New  York;  Culbreth,  Maryland; 
Philip  P.  Barbour,  Virginia;  Hackley,  New  York;  S.  Moore, 
Pennsylvania;  Stevens,  Connecticut ;  Rogers,  Pennsylvania;  H. 
Southard,  New  Jersey ;  Darlington,  Pennsylvania;  Pitcher,  New 
York;  Sloan,  Ohio;  Randolph,  Virginia;  Baldwin,  North  Caro- 
lina;  Smith,  North  Carolina.  Members  of  the  Senate — Holmes, 
Maine;  James  Barbour,  Virginia  ;  Morrill,  New  Hampshire  ;  S.  L. 
Southard,  New  Jersey  ;  Johnson,  Kentucky ;  King,  New  York ; 
Roberts,  Pennsylvania.  S.  L.  Southard  was  President  pro  tern. 
of  the  Senate  ;  he  vvas  the  son  of  Henry  Southard,  of  the  House. 
Father  and  son  voted  alike  on  the  Missouri  Compromise. 

307 


ConstHiiUoiial  History  of  the  American  People 

The  report  of  this  committee  was  delivered  on 
the  28th,  and  was  in  substance  that  of  the  former 
committee  of  thirteen.  Again  there  followed  a 
sharp  discussion  in  the  House,  and  a  vote  was 
taken.  The  report  was  carried  by  four  votes.* 
In  the  Senate,  three  days  later,  it  passed  by  a  vote 
of  two  to  one.t  On  the  2d  of  March  it  became  a 
law^  In  June  the  Missouri  Legislature  complied. 
In  August  the  President's  proclamation  issued,  and 
the  Missouri  struggle  was  over. 

At  the  root  of  the  Missouri  Compromise  lay  a 
federal  question  which,  for  the  first  time  in  the 
history  of  American  democracy,  demanded  solu- 
tion: What  authority  has  the  government  of  the 
United  States,  under  the  Constitution,  to  impose 
restrictions  on  a  Territory  or  a  State,''  Could 
Congress  restrict  slavery }  Essentially,  the  ques- 
tion was  one  of  sovereignty. 

What  was  this  Union.'*  A  confederation  of 
States  equal  in  sovereignty,  capable  of  everything 
which  the  Constitution  does  not  forbid  or  which  it 
does  not  authorize  Congrress  to  forbid.     The  chief 

O 

purpose  of  the  union  was  the  common  protection 
of  the  sovereignty  already  existing  in  the  States. 
The  parties  to  the  Union — the  States — had  given 
up  a  portion  of  their  sovereignty  to  insure  the  re- 
mainder. Means  were  provided  for  defining  this 
residuary  sovereignty.  The  Union  was  a  com- 
pact. Whether  old  or  new,  a  State  was  equally 
sovereign  with  the  other  States.     Territorial  con- 

*  Eighty-six  to  eighty-two.  t  Twenty-eight  to  fourteen. 

.-.08 


Federal  Restrictions  and  the  Rights  of  States 

sent  signified  nothing;  only  a  State  could  decide 
as  to  its  own  sovereignty.  This  sovereignty  vi^as 
a  constant  quantity,  incapable  of  being  diminished 
by  the  Union  without  the  consent  of  the  State. 
Therefore  the  federal  government  had  no  power 
to  impose  restrictions  on  a  State.  Slavery  restric- 
tion, except  by  a  State,  was,  therefore,  unconstitu- 
tional. Whatever  his  change  of  residence,  a  slave 
remained  a  slave.  He  was  property — nothing  more, 
nothing  less — and  his  condition  was  not  a  subject 
of  Congressional  legislation.  The  States  alone 
could  legislate  concerning  him.  They  alone  as 
sovereigns,  controlling  their  domestic  affairs,  could 
establish  freedom  or  slavery.  As  the  oppo- 
nents of  the  admission  of  Missouri  did  not  de- 
mand the  abolition  of  slavery  there,  they  must 
thereby  admit  that  it  existed  by  authority;  for 
them  to  claim  that  it  should  be  restricted  to  Mis- 
souri was  merely  a  contradiction  of  their  own 
views.  If  they  did  not  wish  to  abolish  it,  by  what 
authority  would  they  seek  to  restrict  it?  The 
opponents  of  slavery  must,  therefore,  in  order  to 
be  consistent,  either  abandon  their  doctrine  of  the 
legality  of  the  restriction  of  slavery  or  their  doc- 
trine of  abolition.  Slavery  was  the  natural  state 
of  the  African  from  the  dawn  of  history.  Consti- 
tutions, written  and  unwritten,  confirmed  it.  That 
of  the  United  States  recognized  it,  and  those  of 
most  of  the  commonwealths  also.  Equality  among 
the  States  depended  on  its  recognition  and  contin- 
uance. Being  a  domestic  institution,  it  was  wholly 
without  the  sphere  of  federal  government,  except  as 

309 


Constifiitioual  History  of  the  /inuruwi  People 

that  government  was  established  and  obligated  to 
protect  the  States.  Slavery  was  not  inconsistent 
with  a  republican  form  of  government.  The  people 
of  a  State  could,  at  their  will,  establish  or  destroy 
slavery;  it  was  merely  a  result  of  legislation.  The 
form  was  one  thing,  the  law  quite  another.  Uni- 
versal suffrage  was  not  sanctioned  by  all  the  free 
States ;  they  disfranchised  for  poverty  as  much  as 
the  slave-holding  States  disfranchised  for  race  and 
color.  The  disqualified,  whether  they  were  slave 
or  free,  obeyed  the  laws,  but  they  had  no  share  in 
making  them.  Were  the  governments  of  these 
free  States  republican  in  form?  The  Constitution 
of  the  United  States  made  no  requirements  for 
electors  other  than  those  prescribed  by  the  sev- 
eral States ;  if  it  could  prescribe  these,  "  the 
Union  might  be  reduced  from  a  union  to  a 
unit." 

But  it  was  said  that  the  clause  providing  for 
the  suppression  of  the  slave-trade  after  1808 
proved  that  Congress  had  power  to  impose  re- 
strictions on  slavery.  "  Migration  "  applied  to 
freemen  only,  and  was  synonymous  with  importa- 
tion. If  Congress  could  prevent  the  migration  of 
slaves  from  State  to  State,  why  not  from  county 
to  county  within  the  State?  —  fi'om  plantation  to 
plantation  ? — from  house  to  house  ?  The  clause 
only  authorized  Congress  to  forbid  the  migration 
or  importation  of  slaves  from  a  foreign  jurisdiction 
into  any  of  the  United  States.  Slaves  were  prop- 
erty ;  slavery,  a  domestic  question  to  be  settled  by 
each  sovereign  State  to  suit  itself.     These  ideas 

310 


Congressional  Powers  to  Prohibit  Slavery 

were  advocated  by  the  party  that  stood  for   the 
doctrines  of  '98.* 

But  there  was  another  side  to  the  question. 
The  Constitution  empowered  Congress  to  make 
all  needful  rules  and  regulations  respecting  the 
Territory  and  other  property  of  the  United  States. 
It  could,  therefore,  prohibit  slavery  in  the  Terri- 
tories, and  as  Missouri  was  organized  out  of  the 
purchase  from  France,  the  restriction  of  slavery 
within  it  was  clearly  within  the  authority  of  Con- 
gress. The  power  to  admit  new  States  implied 
the  right  to  determine  the  conditions  of  admis- 
sion. Congress  could  admit  or  not,  at  its  discre- 
tion. When  admitted,  a  new  State  stood  on  a 
footing  with  the  old,  and  its  citizens  were  entitled 
to  all  the  immunities  and  privileges  of  citizens  in 
the  several  States.  As  Congress  could  affix  con- 
ditions to  admission,  it  could  prohibit  slavery  for- 
ever in  a  new  State.  In  proof  of  this  were  the 
Ordinance  of  1787  and  the  prohibition  of  slavery 
in  Ohio,  Indiana,  and  Illinois.  If  the  people  of 
Missouri  were  permitted  to  enjoy  the  privileges 
of  citizens  of  the  several  States,  why  should  the 
citizens  of  these  States  be  denied  similar  privileges 
in  Missouri?  By  the  treaty  of  1803,  ^^"^^  property 
of  the  inhabitants  of  Missouri  was  to  be  protected. 
Only  an  exceptional  use  of  this  word  could  bring 
slaves  within  its  meaning.  As  Congress  could  ex- 
clude slavery  from  a  State  at  the  time  of  its  ad- 
mission, the  State  sovereignty  would  be  bound  by 

*  The  ablest  speech  on  this  side  of  the  question  was  made  by 
William  Pinkney,  of  Maryland,  in  the  Senate,  February  15,  1820. 

311 


ConsUtutional  Histoiy  of  the  American  People 

the  condition.  Even  a  sovereign  power  could  not 
do  an  unlawful  act.  There  was,  however,  a  larger 
view.  Slavery  could  be  excluded  from  Missouri 
on  the  ground  of  promoting  the  common  defence, 
the  general  welfare,  and  that  wise  administration 
of  government  which,  as  far  as  possible,  produces 
an  impartial  distribution  of  benefits  and  burdens 
throughout  the  Union.  Slavery  impoverishes  a 
country  and  makes  its  defence  both  more  expen- 
sive and  diiftcult.  It  weakens  the  power  of  self- 
protection,  and  should  therefore  be  restricted. 
Moreover,  it  was  the  cause  of  a  violation  of  the 
equity  of  representation,  because  in  a  free  State 
thirty-five  thousand  persons  were  required  to  elect 
a  Representative,  while  in  a  slave  State  the  num- 
ber was  only  twenty -five  thousand  five  hundred 
and  fifty-nine.  Five  free  persons  in  Virginia  had 
as  much  power  as  seven  in  New  York  in  the 
choice  of  Representatives  to  Congress.  Nor  was 
this  an  end  of  violence.  Slavery  impaired  the 
industry,  and  therefore  the  power,  of  the  nation,  in 
proportion  to  the  multiplication  of  slaves.  If  the 
laborers  of  a  State  were  slaves,  it  could  not  raise 
soldiers  nor  recruit  seamen.  Manufactures  never 
prosper  where  workmen  are  slaves.  In  case  of 
war,  slaves  weakened  the  country,  because  they 
displaced  freemen  and  increased  the  number  of 
things  to  be  protected.  It  was  for  the  purpose  of 
extending  free  government  that  provision  was 
made  for  the  admission  of  new  States.  Slavery 
existed  in  States  contiguous  to  one  another.  If 
extended    across   the   Mississippi   into    the   great 


Endangering  the  Fundamentals  of  Freedom 

West,  both  the  repose  and  the  security  of  the 
nation  would  be  endangered.  Slave  -  markets 
would  multiply ;  the  principles  of  freedom  would 
be  weakened ;  the  nation  would  have  a  feeble,  be- 
cause a  slave-holding,  frontier.  The  extension  of 
slavery  meant  the  exclusion  of  citizens  of  the 
United  States.  These,  under  the  Constitution,  had 
citizen's  privileges  in  the  several  States,  but  if 
slavery  were  permitted  in  the  new  States,  free  per- 
sons of  color  would  be  the  object  of  discrimina- 
tion. Its  extension  beyond  the  Mississippi  was 
unconstitutional,  because  this  part  of  the  country 
was  exempted  from  conditions  imposed  on  the 
original  States.  They  came  into  the  Union  with 
slavery;  in  the  West  slavery  did  not  exist  as  a 
prior  condition  of  admission  into  the  Union.* 

As  the  Missouri  question  comprehended  the 
fundamentals  of  representative  government  under 
the  American  system,  it  drew  opinions  from  men 
in  all  conditions  of  life.  An  index  to  contem- 
poraneous material  on  the  subject  would  make  a 
respectable  book.     In  a  private  letter,!  John  Jay 

*  The  ablest  speech  for  restriction  was  made  by  Rufus  King, 
of  New  York,  in  the  Senate,  February  ii,  1820.  His  speech  was 
not  reported  in  the  annals.  He  afterwards  wrote  it  out  for 
publication.  See  Papers  Relative  to  the  Restriction  of  Slavery ; 
speeches  of  Mr.  King  in  the  Senate,  and  of  Messrs.  Taylor  and 
Tallmadge  in  the  House  of  Representatives  of  the  United  States 
on  the  bill  for  authorizing  the  people  of  the  Territory  of  Missouri 
to  form  a  constitution  and  State  government,  and  for  the  admis- 
sion of  the  same  into  the  Union,  in  the  session  of  1818-19,  with 
the  report  of  the  Committee  of  the  Abolition  Society  of  Delaware. 
Philadelphia :  Printed  by  Hall  &  Atkinson,  53  Market  Street.  1819. 

t  To  Elias  Boudinot,  November  17,  1S19.  Jay  was  at  this  time 
president  of  the  American  Abolition  Society. 


Constitutional  History  of  the  American  People 

expressed  the  opinion  that  slavery  should  not  be 
permitted  in  any  of  the  new  States ;  that  it  ought 
gradually  to  be  abolished  in  all ;  that  the  power 
of  Congress  to  prohibit  the  importation  and  mi- 
gration of  slaves  was  unquestionable,  and  applied, 
at  its  discretion,  alike  to  old  and  new  States ;  that 
slavery  was  repugnant  to  the  principles  of  the 
Revolution,  and  that,  from  a  consciousness  of  the 
repugnancy,  the  doctrines  of  the  Declaration  of 
Independence  were  held  as  self-evident  truths.  A 
few  days  after  this  letter  was  written  the  leaders 
of  public  opinion  in  Boston  assembled  in  the 
State  House,*  and  with  the  approval  of  a  great 
public  gathering  drew  up  a  memorial  against  the 
further  extension  of  slavery.  It  was  written  by 
Webster  and  expressed  the  prevailing  opinion  of 
New  England.  Doubtless  it  was  Webster's  opinion 
at  that  time.  It  elaborated  the  thought  that  the 
power  to  regulate  commerce  gave  Congress  com- 
plete authority  to  regulate,  and  therefore  to  re- 
strict, slavery.  Just  six  days  before  W' ebster  wrote 
this  memorial,  Madison,  in  one  of  his  most  care- 
fully considered  letters,!  gave  his  own  views  on 
slavery  restriction,  and  anticipated  the  decision  in 
the  Dred  Scott  case  by  declaring  that  the  restric- 
tion of  slavery  by  Congress,  and  by  this  he  meant 
the  Missouri  Compromise,  would  be  unconstitu- 
tional. 

Little   was   added,  in  later   times,  to   the  argu- 
ments presented   during    the    three  years  of  the 

*  December  3,  1819. 

t  To  Robert  Walsh.     Madison's  Works,  Vol.  iii.,  p.  149, 

314 


A  Retrospection 

Missouri  struggle.  Read  to-day,  when  slavery  is 
a  thing  of  the  past,  they  seem  needlessly  and 
heartlessly  cruel,  legal,  and  merely  textual.  The 
doctrine  of  '98  was  in  the  saddle.  Things,  not 
men,  were  the  basis  of  government.  Civil  and 
political  institutions  seem  a  legal  fiction,  the 
national  Constitution  only  a  document,  or  bond, 
whose  execution  was  in  pounds  of  human  flesh. 
Behind  this  slavocratic  tyrant  loomed  other  tyrants 
even  more  formidable — the  laws  and  the  consti- 
tutions of  commonwealths,  and  the  cruel  exactions 
and  prejudices  of  public  opinion. 


CHAPTER    XI 

BEYOND   THE   MISSISSIPPI 

The  authority  of  Congress  to  prescribe  condi- 
tions for  a  Territory*  was  further  illustrated  by  the 
act  of  1832!,  limiting  the  franchise  in  Arkansas 
to  free  white  males.  Of  the  slave-holding  States, 
North  Carolina  alone,  by  its  constitution,  recog- 
nized the  right  in  free  persons  of  color  to  vote,  and 
public  sentiment  there  was  soon  to  be  gratified  by 
the  abrogation  of  the  right4  A  like  change  was 
in  sight  in  Tennessee. §     A  slave-holding  democ- 

*  The  principal  authorities  for  this  chapter  are  the  statutes  at 
large  and  the  records  of  the  conventions  referred  to. 

t  May  31st. 

X  See  Proceedings  and  Debates  of  the  Convention  of  North 
Carolina  called  to  amend  the  Constitution  of  the  State,  which 
assembled  at  Raleigh  June  4,  1835,  to  which  are  subjoined  the 
Convention  Act  and  the  Amendments  to  the  Constitution, 
together  with  the  Votes  of  the  People.  Raleigh :  Printed  by 
Joseph  Gales  &  Son,  1835,  pp.  351-358.  Also,  Sec.  iii.,  p.  421. 
The  provision  of  the  constitution  of  1776,  vii.,  viii.,  allowing  "all 
freemen  "  (otherwise  qualified)  "  to  vote  "  was  modified  in  1835  so 
as  to  exclude  every  "  free  negro,  free  mulatto,  or  free  person  of 
mixed  blood  descended  from  negro  ancestors  to  the  fourth  gen- 
eration, inclusive." 

§  Compare  Constitution  of  Tennessee,  1796,  Art.  iii..  Sec.  i., 
with  that  of  1834,  Art.  iv..  Sec.  i.  "Every  freeman"  changed  to 
*'  every  free  white  man."  See,  also.  Studies  in  the  Constitutional 
History  of  Tennessee,  by  Joshua  W.  Caldwell.  Cincinnati :  The 
Robert  Clarke  Company,  1895,  p.  113. 

316 


Making  the  Arkansas  Constitution 

racy  must  of  necessity  be  a  white-man's  govern- 
ment. When,  on  the  4th  of  January,  1836,  the 
people  of  Arkansas  met  in  convention  at  Little 
Rock  to  form  a  constitution,  they  had  before  them 
as  recent  precedents  the  exclusion  of  free  blacks 
from  the  franchise  in  North  Carolina  and  Ten- 
nessee, and,  practically,  their  exclusion  from  the 
basis  of  representation.  The  constitution  was 
completed  on  the  30th,  was  approved  without 
delay  by  Congress,  and  the  State  was  admitted  in 
the  middle  of  June.  On  the  23d  of  June  a  generous 
grant  was  made  of  school  lands  and  salt-springs,  and 
a  five  per  cent,  donation  for  public  roads  and  canals. 
Fifteen  sections  were  given  to  complete  the  public 
buildings  at  Little  Rock,  and  two  townships  for  a 
university.  These  donations  were  formally  ac- 
cepted by  the  General  Assembly  in  October,  under 
promise  never  to  tax  the  property  of  the  general 
government,  or  discriminate  in  taxation  against 
that  of  non-residents.  The  new  State,  in  its  con- 
stitutional outlines,  was  a  duplication  of  Alabama 
and  Mississippi.  There  could  not  be  a  great  vari- 
ation from  the  type  in  any  pro- slavery  constitu- 
tion. 

Immigrants  had  for  several  years  been  appearing 
west  of  the  Mississippi  and  north  of  Missouri,  but 
they  were  not  yet  sufficiently  numerous  to  warrant 
the  organization  of  a  new  Territory;  therefore,  in 
1834  the  region,  indefinite  in  boundary,  north  of 
Missouri  was  attached  to  the  Territory  of  Michigan. 
Two  years  later  .the  northern  boundary  line  of 
Ohio  was  in  the  way  of  settlement,  and  the  people 

317 


Consiifniioiial  History  of  the  American  People 

of  Michigan  were  authorized  to  organize  a  State 
government.  The  Detroit  convention  rejected  the 
boundary  named  in  the  enabHng  act,  but  a  sup- 
plementary one  practically  removed  all  obstacles. 
Michigan  acquiesced  on  the  15th  of  December,  and 
was  admitted  on  the  26th  of  January  following.* 
The  Arkansas  constitution  followed  the  Southern 
type;  that  of  Michigan  the  Northern,  being  in 
outline  like  those  of  Ohio,  Indiana,  and  Illinois. 
These  four  States  of  the  Northwest  followed  the 
model  of  New  York,  as  their  four  contemporaries 
of  the  Southwest  did  that  of  Virginia. 

It  seemed  at  this  time  that  the  vast  region  north 
of  the  Red  River  and  west  of  Arkansas  and  Mis- 
souri was  destined  to  remain  a  wilderness  for  many 
generations.  The  pressure  of  population  east  of 
the  Mississippi  seemed  now  in  part  to  cease. 
Powerful  Indian  tribes,  which,  a  few  years  before 
the  Missouri  Compromise,  stood  in  the  path  of 
immigration,  had  sold  their  lands  meanwhile,  and 
disappeared,  at  least  for  a  time,  across  the  great 
river.     With   others   that   yet  remained   on   their 


*  See  especially  the  following  authorities  bearing  on  this  sub- 
ject :  Journal  of  the  Proceedings  of  the  Convention  to  form 
a  Constitution  for  the  State  of  Michigan,  begun  and  held  at 
the  Capitol,  in  the  City  of  Detroit,  on  Monday,  the  nth  day  of 
May,  A.  D.  1835.  Detroit:  Printed  by  Sheldon  McKnight,  1835. 
Index — Boundary.  Appeal  by  the  Convention  to  the  People  of 
the  United  States,  with  other  Documents  in  relation  to  the 
Boundary  Question  between  Michigan  and  Ohio.  Detroit:  1835. 
journal  of  the  Convention  held  September  26-30,  1836,  to  Con- 
sider Admission  into  the  Union.  Pontiac  :  1836.  Journal  of  the 
Convention  held  December  14-15,  1836,  to  give  Assent  required 
by  Act  of  Congress  previous  to  Admission.     Ann  Arbor  :  1836. 

-^i8 


Inauguration  of  an  Indian  Policy 

ancient  hunting-grounds,  negotiations  were  in 
progress,  and  their  removal  was  impending.  But 
the  negotiations  seemed  slow  to  the  thickening 
line  of  frontiersmen  clamoring  for  land. 

On  the  last  day  of  June,  1834,  Congress  set 
apart  as  the  Indian  Country  all  the  unorganized 
public  domain  west  of  the  States.  This  proved  to 
be  the  great  organic  act  in  the  history  of  the  tribes, 
for  it  began  a  new  Indian  policy.  From  this  time 
began  the  process  of  gathering  the  Indians  into 
reservations.  At  first  the  vast  unorganized  West 
comprised  one.  As  time  passed  and  Territories 
were  organized,  reservations  were  increased  in 
number  and  diminished  in  size.  An  Indian  policy 
was  begun  which,  before  the  century  closed,  was 
to  scatter,  yet  to  concentrate,  the  tribes ;  to  break 
up  their  organization,  and  gradually  to  force  an 
exchange  of  Indian  title  for  annuities,  or  for  other 
lands,  or  for  lands  in  severalty. 

Technically,  in  1834,  the  Indian  Country  lay 
east  as  well  as  west  of  the  Mississippi,  for  it  includ- 
ed all  lands  to  which  the  Indian  title  had  not  been 
extinguished.  For  judicial  purposes,  this  country 
was  attached  to  Missouri.  One  great  purpose  of 
the  act  was  to  exclude  the  whites  from  the  reserva- 
tion. It  could  be  entered  only  by  the  agents  of 
the  national  government.  At  the  same  time  a 
Department  of  Indian  Affairs  was  created,  under 
charge  of  a  commissioner.  The  public,  ignoring 
the  correct  title  of  the  reservation,  called  it  the 
Indian  Territory,  and  the  popular  name  was  soon 
sanctioned  by  the  department  and  by  the  Presi- 

319 


Constitutional  History  of  the  American  People 

dent.     There  has  never  been  an  organized  Indian 
Territory.* 

The  States,  about  this  time,  began  accurate  sur- 
veys of  their  boundaries.  Congress,  in  1831,  or- 
dered the  survey  of  the  line  between  Alabama  and 
Florida,  and  between  Illinois  and  the  Territory  of 
Michigan.  Usually,  the  enabling  act  described 
the  boundaries  of  a  new  State,  but,  at  best,  only 
approximately.  Maps  were  inaccurate,  and  actual 
surveys  were  necessary  to  establish  the  lines.  The 
new  States,  like  the  old,  soon  had  boundary  dis- 
putes on  hand.  The  admission  of  Michigan  left 
the  region  to  the  west  for  Territorial  organization, 
and,  early  in  1836,!  Wisconsin  was  given  a  govern- 
ment, modelled  after  those  already  familiar  in  the 
old  Northwest.  In  one  respect,  however,  there 
was  a  departure.  Members,  both  of  the  Council 
and  the  House,  were  chosen  by  the  voters.  On 
the   2d  of  July,  Congress  directed  the   surveyor- 

*  The  lands  within  it  were  granted,  at  various  times,  to  the  Ind- 
ians— in  1838,  a  portion,  by  patent,  to  the  Cherokees ;  in  1842, 
another  portion,  by  patent,  to  the  Choctaws;  in  1852,  the  remain- 
der, by  patent,  to  the  Creeks.  These  patents  included  lands 
within  the  present  boundary  of  Kansas.  By  these  patents  the 
land  was  conveyed  in  fee  forever.  Many  other  tribes  have  been 
moved  into  the  territory  and  lands  assigned  them  by  treaty. 
During  the  first  half  of  the  century  the  tribes  were  not  disturb- 
ed. They  were  treated  as  separate  and  independent  nations. 
Treaties  were  made  by  the  War  Department.  The  Indian  Com- 
missioner was  in  that  department  until  1849,  when  the  Depart- 
ment of  the  Interior  was  created,  and  the  Indian  Bureau  was  trans- 
ferred to  it,  where  it  has  remained.  See  Report  on  Indians  Taxed 
and  Indians  Not  Taxed  in  the  United  States  (except  Alaska)  at 
the  Eleventh  Census:  1890.  Washington,  D.  C. :  Government 
Printing-office,  1894,  pp.  1-69. 

t  April  20th. 

320 


Building  Up  the  IVestern  Cities 

general  to  lay  out  designated  tracts  of  land  as 
towns.  Madison,  Burlington,  and  Dubuque  were 
thus  laid  out  into  in-lots,  with  streets,  avenues,  and 
public  squares.  The  lots  were  arranged  in  three 
classes — the  first  to  be  sold  at  the  rate  of  forty 
dollars  an  acre,  the  second  at  twenty,  the  third  at 
ten.  A  purchaser  could  not  acquire  more  than 
one  acre.  These  town-surveys  were  the  subject  of 
several  amendatory  acts — as  that  of  1838,*  which 
provided  for  a  Territorial  surveyor,  who  should 
follow  the  precedents  set  by  the  surveyor  of  Ohio. 
His  office  was  at  Dubuque.  Usually  a  Territorial 
survey  has  gone  no  further  than  that  of  town- 
ships and  counties.  The  survey  now  ordered  was 
extended  west  of  the  Mississippi. 

The  act  provided  also  for  the  survey  of  the 
boundary  between  Wisconsin  and  Michigan.  Two 
townships  were  set  apart  by  Congress  for  the  sup- 
port of  a  university ;  a  grant  was  made  for  public 
buildings,  and  another  in  aid  of  a  canal  to  connect 
Lake  Michigan  and  Rock  River.f  Wisconsin  re- 
sembled Alabama  in  the  rapidity  with  which  popu- 
lation poured  in.  The  Territory  was  soon  divided, 
and  the  name  Iowa  given  to  the  southwestern  part.| 
The  old  Northwestern  model  was  again  followed, 
but  Iowa  had  a  new  feature  in  the  Congressional 
appropriation  of  five  thousand  dollars  to  be  ex- 

*  June  1 2th.  t  June  i8th. 

X  June  12,  1838.  See  Iowa  City,  a  Contribution  to  the  Early 
History  of  Iowa,  by  Benjamin  F.  Shambaugh,  M.A.;  State  His- 
torical Society  of  Iowa,  Iowa  City,  Iowa,  1893.  Also,  Docu- 
mentary Material  Relating  to  the  History  of  Iowa,  edited  by 
Benjamin  F.  Shambaugh,  A.M.,  Ph.D.;  Historical  Society,  etc. 
I. — X  321 


Constitutional  History  of  the  American  People 

pended  in  books  for  the  use  of  the  Territorial  of- 
ficers. The  survey  of  the  southern  boundary 
was  ordered,*  and  the  usual  land  grant  was  made. 
A  year  laterf  the  Legislature  defined  the  eastern 
boundary,  along  the  middle  of  the  main  channel 
of  the  Mississippi,  and  declared  it  under  concur- 
rent jurisdiction  with  Wisconsin. 

The  organization  of  new  Territorial  govern- 
ments barely  kept  pace  with  the  movements  and 
demands  of  population.  By  the  removal  of  the 
Indians,  the  East  experienced  a  great  relief — and 
the  East  now  began  at  the  Mississippi.  In  ten 
years:]:  the  frontier  had  moved  more  than  two  hun- 
dred and  fifty  miles  north  and  northwest,  in  Ohio, 
Michigan,  Indiana,  Illinois,  and  Wisconsin.  The 
new-comers  were  chiefly  from  New  England,  New 
York,  and  Pennsylvania,  but  Ohio  was  rapidly  be- 
coming a  parent  of  States.  In  the  same  period 
similar  changes  had  gone  on  in  the  Southwest. 
The  Indian  tribes,  so  long  elements  of  discord  in 
surveyed  Alabama  and  Mississippi,  were  now  in 
the  Indian  Country,  and  a  prosperous  population 
was  in  possession  of  their  ancient  lands,  save  the 
desolate  pine  barrens  of  Georgia  and  the  swamps 
of  Western  Mississippi.  The  unoccupied  portions 
of  Arkansas  and  Missouri  were  dense  forests  and 
impassable  swamps.  The  entire  Southern  coun- 
try, which  had  gone  into  private  ownership  since 
1820,  was  less  accessible  than  the  new  country  of 
the  North  and  Northwest.     Michigan,  Wisconsin, 

*  June  i8th.  t  March  3,  1839.  I  1830  to  1840. 

322 


Transportation  the  Need  of  the  Time 

and  Iowa  were  easily  accessible,  and  their  settled 
parts  were  in  a  prairie  country.  Heavy  timber 
was  yet  abundant  in  New  York  and  Pennsylvania; 
the  forests  of  Michigan  and  Wisconsin  were  not 
to  be  converted  into  lumber  camps  till  the  Eastern 
supply  of  lumber  began  to  fail.  As  there  was  no 
market  for  timber  that  stood  far  from  great  water- 
ways, the  settlements  in  the  timber  districts,  North 
and  South,  like  those  first  made  in  the  colonies, 
were  in  the  most  accessible  valleys  and  near  the 
great  lakes — the  natural  highways  of  the  country. 
Population  was  increasing  most  rapidly  at  the  cen- 
tres of  trade,  and  among  these  were  Cincinnati, 
Louisville,  Detroit,  and  Chicago.  All  the  coast 
cities  having  harbors  suited  to  the  increasing  draft 
of  ships,  and  the  cities  along  the  Erie  canal,  were 
growing  beyond  precedent.  Interstate  commerce 
was  by  waterways  and  wagon-roads.  States  were 
competing  with  one  another  for  the  carrying-trade 
from  the  West  to  the  Atlantic  seaboard.  Every- 
where internal  improvements  were  demanded,  and 
in  most  cases  beyond  the  ability  of  the  States  to 
construct  and  to  maintain.  The  statute  -  books 
were  swelling  with  acts  for  the  construction  of 
canals  that  would  connect  the  great  lakes  with 
the  Ohio,  the  Ohio  with  the  Delaware  and  with 
Chesapeake  Bay,  and  the  larger  eastern  tribu- 
taries of  the  Mississippi  one  with  another.  Other 
acts  proposed  wagon -roads  and  railroads  aggre- 
CTatins:  thousands  of  miles,  connectino:  rivers  and 
canals,  and  weaving  a  vast  net-work  of  highways 
over  the  whole  country.     Creeks  were  to  be  en- 


Constitutional  History  of  tljc  American  People 

larged  into  rivers.  Political  careers  were  made, 
broken,  and  mended  by  the  army  of  office-seek- 
ers who,  especially  in  the  newer  States,  were 
loudly  advocating  internal  improvements.  The 
great  West  was  rapidly  mortgaging  its  credit  for 
roads,  bridges,  railroads,  and  canals.  Was  not  the 
State  bound  to  receive  vast  accessions  to  its  popu- 
lation ?  Haw  were  people  to  reach  it?  Build 
roads,  bridge  streams,  issue  bonds,  and  borrow 
money.  Immigration  would  pour  in,  and  the  in- 
crease of  taxable  property  would  pay  the  debt.  This 
was  the  stock  argument.  Lincoln  used  it  in  1832, 
when  first  he  stumped  the  New  Salem  district  as 
"  an  avowed  Henry  Clay  man."  His  circular  let- 
ter which  began  his  political  career  admits  us, 
without  reserve,  into  the  secrets  of  his  ambition 
and  the  wants  of  the  West.  It  is  the  voice  of  the 
people  living  in  the  great  valley. 

Address  to  the  People  of  the  Sangamon  County* 

Fellow-citizens,  —  Having  become  a  candidate  for  the 
honorable  office  of  one  of  your  Representatives  in  the  next 
General  Assembly  of  this  State,  in  accordance  with  an  estab- 
lished custom  and  the  principles  of  true  Republicanism,  it 
becomes  my  duty  to  make  known  to  you,  the  people  whom 
I  propose  to  represent,  my  sentiments  with  regard  to  local 
affairs. 

Time  and  experience  have  verified  to  a  demonstration  the 
public  utility  of  internal  improvements.  That  the  poorest 
and  most  thinly  populated  countries  would  be  greatly  bene- 
fited by  the  opening  of  good   roads,  and  in   the  clearing  of 

*  Abraham  Lincoln:  Complete  Works.  Edited  by  John  G. 
Nicolay  and  John  Hay.     Vol.  !.,  pp.  1-4,  7. 

324 


Lincoln  on  Transit  in  ilje  West 

navigable  streams  within  their  limits,  is  what  no  person  will 
den3\  Yet  it  is  folly  to  undertake  works  of  this  or  any  other 
kind  without  first  knowing  that  we  are  able  to  finish  them — 
as  half-finished  work  generally  proves  to  be  labor  lost.  There 
cannot  justly  be  any  objection  to  having  railroads  and  canals, 
any  more  than  to  other  good  things,  provided  they  cost  noth- 
ing. The  only  objection  is  to  paying  for  them;  and  the  ob- 
jection arises  from  the  want  of  ability  to  pay. 

With  respect  to  tlie  county  of  Sangamon,  some  more  easy 
means  of  communication  than  it  now  possesses,  for  the  pur- 
pose of  facilitating  the  task  of  exporting  the  surplus  products 
of  its  fertile  soil,  and  importing  necessary  articles  from  abroad, 
are  indispensably  necessary.  A  meeting  has  been  held  of  the 
citizens  of  Jacksonville  and  the  adjacent  country,  for  the 
purpose  of  deliberating  and  inquiring  into  the  expediency  of 
constructing  a  railroad  from  some  eligible  point  on  the  Illi- 
nois River,  through  the  town  of  Jacksonville,  in  Morgan 
County,  to  the  town  of  Springfield,  in  Sangamon  County. 
This  is,  indeed,  a  very  desirable  object.  No  other  improve- 
ment that  reason  will  justify  us  in  hoping  for  can  equal  in 
utility  the  railroad.  It  is  a  never-failing  source  of  communi- 
cation between  places  of  business  remotely  situated  from  each 
other.  Upon  the  railroad  the  regular  progress  of  commer- 
cial intercourse  is  not  interrupted  by  either  high  or  low  water 
or  freezing  weather,  which  are  the  principal  difficulties  that 
render  our  future  hopes  of  water -communication  precarious 
and  uncertain. 

Yet,  however  desirable  an  object  the  construction  of  a  rail- 
road through  our  country  may  be,  however  high  our  imagina- 
tions may  be  heated  at  thoughts  of  it,  there  is  always  a  heart- 
appalling  shock  accompanying  the  amount  of  its  cost,  which 
forces  us  to  shrink  from  our  pleasing  anticipations.  The 
probable  cost  of  this  contemplated  railroad  is  estimated  at 
$290,000;  the  bare  statement  of  which,  in  my  opinion,  is  suf- 
ficient to  justify  the  belief  that  the  improvement  of  the  San- 
gamon River  is  an  object  much  better  suited  to  our  infant  re- 
sources. 

Respecting  this  view,  I  think  I  may  say,  without  the  fear 
of   being  contradicted,  that   its   navigation   may  be  rendered 

325 


Coiislitutioiial  History  of  the  /American  People 

completely  practicable  as  high  as  the  mouth  of  the  South 
Fork,  or  probably  higher,  to  vessels  of  from  twenty -five  to 
thirty  tons  burden,  for  at  least  one-half  of  all  common  years, 
and  to  vessels  of  much  greater  buiden  a  part  of  the  time. 
From  my  peculiar  circumstances,  it  is  probable  that  for  the 
last  twelve  months  I  have  given  as  particular  attention  to  the 
stage  of  the  water  in  this  river  as  any  other  person  in  the 
country.  In  the  month  of  March,  183 1,  in  company  with 
others,  I  commenced  the  building  of  a  flat-boat  on  the  San- 
gamon, and  finished  and  took  her  out  in  the  course  of  the 
spring.  Since  that  time  I  have  been  concerned  in  the  mill 
at  New  Salem.  These  circumstances  are  sufficient  evidence 
that  I  have  not  been  very  inattentive  to  the  stages  of  the 
water.  The  time  at  which  we  crossed  the  mill-dam  being  in 
the  last  days  of  April,  the  water  was  lower  than  it  had  been 
since  the  breaking  of  winter  in  February,  or  than  it  was  for 
several  weeks  after.  The  principal  difficulties  we  encoun- 
tered in  descending  the  river  were  from  the  drifted  timber, 
which  obstructions  all  know  are  not  difficult  to  be  removed. 
Knowing  almost  precisely  the  height  of  water  at  that  time, 
1  believe  1  am  safe  in  saying  that  it  has  as  often  been  higher 
as  lower  since. 

From  this  view  of  the  subject,  it  appears  that  my  calcula- 
tions with  regard  to  the  navigation  of  the  Sangamon  cannot 
but  be  founded  in  reason  ;  but,  whatever  may  be  its  natural 
advantages,  certain  it  is  that  it  never  can  be  practically  use- 
ful to  any  great  extent  without  being  greatly  improved  by 
art.  The  drifted  timber,  as  I  have  before  mentioned,  is  the 
most  formidable  barrier  to  this  object.  Of  all  parts  of  this 
river,  none  will  require  so  much  labor  in  proportion  to  make  it 
navigable  as  the  last  thirty  or  thirty-five  miles  ;  and  going  with 
the  meanderings  of  the  channel,  wlien  we  are  this  distance 
above  its  mouth  we  are  only  between  twelve  and  eighteen  miles 
above  Beardstown  in  something  near  a  straight  direction  ;  and 
this  route  is  upon  such  low  ground  as  to  retain  water  in  many 
places  during  the  season,  and  in  all  parts  such  as  to  draw 
two-thirds  or  three-fourths  of  the  river  water  at  all  high  stages. 

This  route  is  on  prairie  land  the  whole  distance,  so  that 
it  appears  to  me,  by  removing  the  turf  a  sufficient  width,  and 

X2G 


A  Condemnation  of  Usimous  Practices 

damming  up  the  old  channel,  the  whole  river  in  a  short  time 
would  wash  its  way  through,  thereby  curtailing  the  distance 
and  increasing  the  velocity  of  the  current  very  considerably, 
while  there  would  be  no  timber  on  the  banks  to  obstruct  its 
navigation  in  future;  and  being  nearly  straight,  the  timber 
which  might  float  in  at  the  head  would  be  apt  to  go  clear 
through.  There  are  also  many  places  above  this  where  the 
river,  in  its  zigzag  course,  forms  such  complete  peninsulas  as 
to  be  easier  to  cut  at  the  necks  than  to  remove  the  obstruc- 
tions from  the  bends,  which,  if  done,  would  also  lessen  the 
distance. 

What  the  cost  of  this  work  would  be  I  am  unable  to  say. 
It  is  probable,  however,  that  it  would  not  be  greater  than  is 
common  to  streams  of  the  same  length.  Finally,  I  believe 
the  improvement  of  the  Sangamon  River  to  be  vastly  im- 
portant and  highly  desirable  to  the  people  of  the  county; 
and,  if  elected,  any  measure  in  the  Legislature  having  this  for 
its  object,  which  may  appear  judicious,  will  meet  my  approba- 
tion and  receive  my  support. 

It  appears  that  the  practice  of  loaning  money  at  exorbitant 
rates  of  interest  has  already  been  opened  as  a  field  for  dis- 
cussion ;  so  I  suppose  I  may  enter  upon  it  without  claiming 
the  honor,  or  risking  the  danger,  which  may  await  its  first  ex- 
plorer. It  seems  as  though  we  are  never  to  have  an  end  to 
this  baneful  and  corroding  system,  acting  almost  as  prejudi- 
cially to  the  general  interests  of  the  community  as  a  direct  tax 
of  several  thousand  dollars  annually  laid  on  each  county  for 
the  benefit  of  a  few  individuals  only,  unless  there  be  a  law 
made  fixing  the  limits  of  usury.  A  law  for  this  purpose,  I 
am  of  opinion,  may  be  made  without  materially  injuring  any 
class  of  people.  In  cases  of  extreme  necessity  there  could 
always  be  means  found  to  cheat  the  law,  while  in  all  other 
cases  it  would  have  its  intended  effect.  I  would  favor  the 
passage  of  a  law  on  this  subject  which  might  not  be  very 
easily  evaded.  Let  it  be  such  that  the  labor  and  difficulty  of 
evading  it  could  only  be  justified  in  cases  of  greatest  neces- 
sity. 

Upon  the  subject  of  education,  not  presuming  to  dictate 
any  plan  or  system  respecting  it,  I  can  only  say  that  I  view 

327 


Constitutional  History  of  the  American  People 

it  as  the  most  important  subject  which  we  as  a  people  can 
be  engaged  in.  That  every  man  may  receive  at  least  a 
moderate  education,  and  thereby  be  enabled  to  read  the  his- 
tories of  his  own  and  other  countries,  by  which  he  may  fully 
appreciate  the  value  of  our  free  institutions,  appears  to  be 
an  object  of  vital  importance,  even  on  this  account  alone, 
to  say  nothing  of  the  advantages  and  satisfaction  to  be  de- 
rived from  all  being  able  to  read  the  Scriptures,  and  other 
works,  both  of  a  religious  and  moral  nature,  for  themselves. 

For  my  part,  I  desire  to  see  the  time  when  education— and 
by  its  means,  morality,  sobriety,  enterprise,  and  industry — 
shall  become  much  more  general  than  at  present,  and  should 
be  gratified  to  have  it  in  my  power  to  contribute  something 
to  the  advancement  of  any  measure  which  might  have  a  ten- 
dency to  accelerate  that  happy  period. 

With  regard  to  existing  laws,  some  alterations  are  thought 
to  be  necessary.  Many  respectable  men  have  suggested  that 
our  estray  laws,  the  laws  respecting  the  issuing  of  executions, 
the  road  law,  and  some  others,  are  deficient  in  their  present 
form,  and  require  alterations.  But  considering  the  great  prob- 
ability tliat  the  framers  of  those  laws  were  wiser  than  myself, 
I  should  prefer  not  meddling  with  them,  unless  they  were  first 
attacked  by  others;  in  which  case  I  should  feel  it  both  a  priv- 
ilege and  a  duty  to  take  that  stand  which,  in  my  view,  might 
tend  most  to  the  advancement  of  justice. 

But,  fellow -citizens,  I  shall  conclude.  Considering  the 
great  degree  of  modesty  which  should  always  attend  youth,  it 
is  probable  I  have  already  been  more  presuming  than  becomes 
me.  However,  upon  the  subjects  of  which  I  have  treated  I 
have  spoken  as  I  have  thought.  I  may  be  wrong  in  regard  to 
any  or  all  of  them,  but,  holding  it  a  sound  maxim  that  it  is 
better  only  sometimes  to  be  right  than  at  all  times  to  be 
wrong,  so  soon  as  I  discover  my  opinions  to  be  erroneous  I 
shall  be  ready  to  renounce  them. 

Every  man  is  said  to  have  his  peculiar  ambition.  Whether 
it  be  true  or  not,  I  can  say,  for  one,  that  I  iiave  no  other  so 
great  as  that  of  being  truly  esteemed  of  my  fellow-men,  by 
rendering  myself  worthy  of  their  esteem.  How  far  I  shall 
succeed  in  gratifying  this  ambition  is  yet  to  be  developed.     I 

32S 


A  Plethora  of  State  Banks  in  the  West 

am  young,  and  unknown  to  many  of  you.  I  was  born,  and 
have  ever  remained,  in  the  most  humble  walks  of  life.  I  have 
no  wealthy  or  popular  relations  or  friends  to  recommend  me. 
My  case  is  thrown  exclusively  upon  the  independent  voters  of 
the  country ;  and,  if  elected,  they  will  have  conferred  a  favor 
upon  me  for  which  I  shall  be  unremitting  in  my  labors  to 
compensate.  But  if  the  good  people  in  their  wisdom  shall 
see  fit  to  keep  me  in  the  background,  I  have  been  too  familiar 
with  disappointments  to  be  very  much  chagrined. 

Your  friend  and  fellow-citizen, 

A.  Lincoln. 
New  Salem,  March  9,  1832. 

The  Western  country  was  dreaming  of  the  time 
— close  at  hand — when  steamboats  would  be  pen- 
etrating its  rivers,  bringing  the  wealth  of  the  world 
to  its  doors  and  bearing  away  its  surplus  corn  and 
bacon.  The  West  was  young,  confident,  aggi-es- 
sive.  There  was  a  lesser  Lincoln  in  every  district, 
eager  to  vote  the  boundless  credit  of  the  State 
for  the  support  of  internal  improvements.  But  of 
what  use  such  improvements  if  the  people  had  no 
money  for  their  own  affairs  ?  Money,  and  plenty 
of  it,  was  the  popular  cry,  and  in  response  the  As- 
semblies passed  volumes  of  bank-laws.  State  banks 
sprang  up  at  the  cross-roads,  in  the  cities,  and 
showered  reams  of  fiat  money  over  the  country. 
Another  money  delusion  seized  on  men,  and,  like  a 
fever,  ran  its  time.  It  was  an  era  of  irresponsible 
banking  and  "wild-cat"  currency.  Experiment 
with  more  or  less  vicious  banking  schemes  contin- 
ued until  uniformity  and  responsibility  were  secured 
by  the  national-bank  act  of  1863. 

The  new  States  were  booming;  their  every  in- 

329 


Constitutional  History  of  the  American  People 

habitant  was  about  to  make  his  fortune.  Plenty 
of  money,  plenty  of  railroads  and  canals,  and  the 
thing  was  done.  How  it  was  done  is  well  illus- 
trated in  Lincoln's  own  experience.  In  1834  he 
again  stumped  Sangamon  County,  advocating  the 
same  policy  as  before,  and  in  August  was  elected. 
Illinois  had  nearly  a  quarter  of  a  million  inhabi- 
tants, the  majority  of  whom  were  in  favor  of  that 
policy.  In  the  Assembly  of  1834-35  plans  were 
discussed  for  the  general  improvement  of  the  State, 
and  the  legislators  got  no  further  that  session. 
Most  of  them  were  candidates  for  re-election,  and 
amons:  others  Lincoln.  Asfain  he  issued  an  ad- 
dress  to  his  district.  His  policy  was  comprehen- 
sive : 

To  the  Editor  of  the  ''Journal: 

In  your  paper  of  last  Saturday  I  see  a  communication,  over 
the  signature  of  "  Many  Voters,"  in  which  the  candidates  who 
are  announced  in  the  Journal  are  called  upon  to  "show 
their  hands."     Agreed.     Here's  mine. 

I  go  for  all  sharing  the  privileges  of  the  government  who 
assist  in  bearing  its  burdens.  Consequently,  I  go  for  admit- 
ting all  whites  to  the  right  of  suffrage  who  pay  taxes  or  bear 
arms  (by  no  means  excluding  females). 

If  elected,  I  shall  consider  the  whole  people  of  Sangamon 
my  constituents,  as  well  those  that  oppose  as  those  that  sup- 
port me. 

While  acting  as  their  Representative,  I  shall  be  governed  by 
their  will  on  all  subjects  upon  which  I  have  the  means  of  know- 
ing what  their  will  is  ;  and  upon  all  others  I  shall  do  what  my 
own  judgment  teaches  me  will  best  advance  their  interests. 
Whether  elected  or  not,  I  go  for  distributing  the  proceeds  of 
the  sales  of  the  public  lands  to  the  several  States,  to  enable  our 
State,  in   common  with  others,  to  dig  canals    and  construct 


Lincoln  Favors  Paternalism  in  Government 

railroads  without  borrowing  money  and  paying  the  interest 
on  it. 

If  alive  on  the  first  Monday  in  November,  I  shall  vote  for 
Hugh  L.  White  for  President.  Very  respectfully, 

A.  Lincoln, 

New  Salem, /««t'  13,  1836. 

Again  he  was  elected,  and,  with  the  majority  of 
the  Legislature,  returned  in  full  confidence  that 
the  people  demanded  a  complete  system  of  inter- 
nal improvements  at  their  expense.  The  session 
of  the  Illinois  Legislature  of  1835  was  not  unlike 
that  in  other  Western  States.  Railroads  were 
chartered,  canals  projected,  and  a  loan  of  half  a 
million  dollars  for  canal  purposes  authorized.  This 
was  more  than  two  dollars  apiece  for  every  man, 
woman,  and  child  in  the  State.  The  State  was 
given  over,  as  by  mortgage,  to  carry  on  enterprises 
of  vast  consequence.  Every  town  in  the  State 
should  be  in  railroad  connection  with  every  other 
— aggregating  thirteen  hundred  and  fifty  miles  of 
construction.  Many  of  the  towns  were  like  that 
city  of  Eden  in  which  Martin  Chuzzlewit  expect- 
ed to  make  his  fortune.  The  State  was  in  danger 
of  being  laid  out  by  the  Legislature  into  in-lots 
and  out-lots  from  Chicago  to  Cairo.  Eight  mill- 
ion dollars  were  voted  for  railroads,  and  four  mill- 
ions more  to  complete  a  canal  from  Lake  Michi- 
gan to  the  Illinois  River.  Innumerable  roads  and 
brido-es  were  authorized,  and  the  law  directed  "  that 
work  should  be  begun  at  once  at  the  termini  of 
all  the  roads  and  the  crossings  of  all  rivers."  This 
stupendous  folly  met  the  approval  of  the  majority 


Const  if  III  ioiial  History  of  the  American  People 

of  the  people,  and  was  advocated  in  a  conservative 
fashion  by  Lincoln.  The  infatuation  possessed 
older,  wiser  men  than  he.  Experienced  legisla- 
tors in  General  Assembly  and  in  Congress  were 
at  the  same  time  strenuously  helping  to  inflate 
the  financial  bubble  that  burst  with  such  dire 
results  in  1837.  That  year  remains  in  our  an- 
nals as  the  Black  Friday  of  fiat  legislation — fiat 
banks,  fiat  money,  fiat  canals,  fiat  railroads,  fiat 
fortunes.  And  yet  the  record  of  those  times  has 
taught  us  little,  and  speculation  has  reached  a 
dizzy  and  almost  equally  dangerous  height  at  least 
twice  since. 

Collapse  awoke  the  spirit  of  repudiation.  The 
newer  States  were  stunned  by  the  weight  of  their 
obligations.  Legislature  followed  Legislature  in 
joint  resolutions  addressed  to  their  creditors.  Illi- 
nois bravely  rejected  repudiation.  Speculation  and 
the  abuse  of  the  credit  system — so  ran  the  resolu- 
tion of  its  Assembly — have  been  common  faults. 
The  whole  world  is  guilty.  And  under  this  stim- 
ulus of  universal  speculation  may  not  a  new  State 
be  justified  in  planning  largely  for  its  people  .f* 
Let  the  creditors  of  the  State  be  patient.  They 
shall  be  paid,  for  the  resources  of  the  State  are 
inexhaustible;  its  people  are  vigorous,  industrious, 
and  honest,  and  they  will  redeem  their  promises.* 
The  lesson  was  learned  at  fearful  cost  all  over  the 
Union  —  in  Pennsylvania  and  New  York  as  well 

*  Joint  resolution,  February  21,  1S43.  See  also  the  joint  reso- 
lution against  repudiation  passed  by  tlie  Alabama  Legislature 
January  17,  1844. 

33^ 


1 


sparse  Foreign- Bom  Population 

as  in  Illinois  and  Kentucky.  The  lessons  of  the 
panic  of  't^j  were  incorporated  in  the  constitutions 
of  the  next  twenty  years,*  and  have  been  remem- 
bered by  every  later  commonwealth. 

While  the  country  was  intoxicated  with  specu- 
lation and  prospective  wealth,  the  frontier  did  not 
advance  far  west.  Migration  is  a  child  of  discon- 
tent. The  increase  in  numbers  was  for  a  time 
chiefly  within  the  old  settled  area — and  this,  in 
1840,  was  a  little  more  than  nine  hundred  thou- 
sand square  miles.  The  portion  of  the  country 
that  might  be  called  entirely  settled  was  now  equal 
in  area  to  that  of  the  original  domain  under  the 
treaty  of  1783.  There  were  about  seventeen  mill- 
ions of  people,  or  about  twenty-two  to  the  square 
mile.  In  spite  of  speculation  and  the  panic,  the 
centre  of  population  had  maintained  an  average 
western  movement  of  nearly  five  and  a  half  miles 
a  year.  The  number  and  the  population  of  cities 
were  increasing.  This  indicated  a  continuance  of 
the  change  going  on  in  the  country,  from  farm  to 
factory.  As  yet  nearly  the  entire  population  was 
native-born.  Less  than  six  hundred  thousand  came 
from  foreign  lands,  and  of  these  the  greater  part 
from  Great  Britain.  A  few  had  come  from  Canada, 
Germany,  Scandinavia,  Italy,  and  France.  There 
were  eight  Chinamen  in  the  country.  The  white 
population  was  increasing  more  rapidly  than  the 
black.    Emancipation  was  becoming  less  common, 

*  Pennsylvania,  1838;  Rhode  Island,  1842;  Louisiana,  1845; 
New  York,  1846;  Illinois,  1848;  Michigan,  Ohio,  and  Kentucky, 
1850;  Indiana  and  Maryland,  1851. 

333 


Constitutional  History  of  tlv  Anjcrican  People 

because  of  restrictions  chiefly  contained  in  recent 
laws.  The  abolition  sentiment  was  gaining  strength 
among  a  class  of  people  who  stood  aloof  from  the 
two  great  parties.  The  Missouri  struggle  had 
given  birth  to  a  Free-soil  party,  and  from  the  day 
when  Taylor  offered  his  resolution  to  exclude 
slavery  from  Missouri,  the  Free-soil  party  gained 
strength  —  disclosed  in  antislavery  publications, 
antislavery  meetings,  in  antislavery  resolutions  of 
State  Legislatures,  and  in  antislavery  laws.  To 
all  this  the  slave-holding  States  made  rejoinder  by 
counter-publications,  resolutions,  and  laws. 

The  collapse  of  State  systems  of  internal  im- 
provement, the  failure  of  the  State  banks  and 
the  suspension  of  specie  payments,  the  deprecia- 
tion of  State  bonds,  the  worthlessness  of  fiat 
money,  and  the  fearful  burdens  which  all  this  ruin 
put  upon  the  shoulders  of  the  taxpayers  left  their 
disfiguring  marks  on  the  lives  of  multitudes  of 
men  and  women.  Few  of  the  children  born  dur- 
ing these  dark  days  had  the  opportunities  which 
in  ordinary,  prosperous  times  are  the  common 
heritage  of  each  generation  of  Americans.  Hard 
times  rob  childhood  and  youth,  burden  manhood, 
and  sadden  old  age.  Business  was  prostrate,  farm 
produce  would  not  sell,  attendance  at  the  schools 
fell  off,  and  especially  at  those  of  higher  grade, 
which  charged  for  tuition. 

Could  one  have  seen  the  whole  country  at  a 
glance  in  the  years  when  Arkansas  and  Michigan 
came  into  the  Union,  and  then  again  two  years 
later,  when   the  great  panic  had  come,  it  would 

334 


Texas  and  Its  Boundary  Line 

have  seemed  as  if  the  nation  had  been  struck  mo- 
tionless— as  if  some  powerful  and  evil  spirit  had 
stopped  the  wheels  in  the  factories,  closed  the 
banks,  shut  up  the  stores,  stayed  the  plough  in  the 
furrow,  fastened  the  boat  to  the  wharf,  suddenly 
dismissed  the  bridge  -  builder,  the  engineer,  and 
the  contractor,  and  discharged  the  laborers  with 
their  tools  in  their  hands.  When,  by  cruel  fortune, 
an  ants'  nest  is  suddenly  crushed  in,  the  little  creat- 
ures are  for  a  moment  stunned.  Then  they  are 
seen  running  aimlessly  in  all  directions  and  ap- 
parently greatly  excited.  After  a  time  they  crawl 
back  into  orderly  ways,  and  begin  to  repair  their 
habitation.  In  a  few  days  they  have  accommo- 
dated themselves  to  their  new  conditions  and  are 
seen  to  be  busily  at  work,  as  if  no  accident  had  be- 
fallen them.  They  will  even  abandon  their  repai;-s 
to  wage  battle  with  another  colony. 

Amid  the  hard  times  that  followed  the  panic  of 
'2i7  the  people  of  the  commonwealths  acted  very 
much  like  a  colony  of  ants  whose  fine  roof  had  sud- 
denly been  tumbled  upon  their  heads.  Stunned, 
uncertain  for  a  time,  they  soon  resumed  their  un- 
dertakings, adapted  themselves  to  their  new  con- 
ditions, and  stood  ready  to  wage  battle  with  their 
opponents.  Nor  was  a  cause  of  division  lacking. 
In  April,  1836,  the  United  States  and  Mexico  ar- 
ranged, through  their  Representatives  at  Washing- 
ton, for  a  survey  of  a  boundary  line  between  the 
two  republics  as  stipulated  by  the  treaty  of  1828.* 

*  Treaties  and  Conventions,  pp.  675-6. 
335 


Coiistifiitional  History  of  the  American  People 

The  execution  of  this  agreement  was  suddenly  in- 
terrupted by  the  revolt  of  Texas  and  its  proclama- 
tion of  independence.*  A  treaty  with  the  new  re- 
public soon  followed,!  and  a  survey  of  boundary 
was  agreed  upon4  It  was  to  be  completed  within 
a  year.  But  no  man  can  tell  what  a  year  may 
bring  forth. 

The  new  republic  was  an  opportunity.  Hard 
times  breed  idlers — restless,  perhaps  dangerous. 
The  panic  of  '37  turned  the  thoughts  of  thousands 
of  Americans,  chiefly  in  the  slave-holding  States, 
towards  Texas.  Military  companies  volunteered 
for  the  defence  of  the  new  republic.  From  Ken- 
tucky, Tennessee,  Arkansas ;  from  Georgia,  the 
Carolinas,  and  Florida;  from  Alabama,  Mississippi, 
and  Louisiana,  these  volunteers  converged  upon 
Texas.  The  compromise  of  1820  had  made  near- 
ly all  the  Louisiana  country  free  soil.     The  reso- 


*  March  2,  1836.  The  declaration  was  an  imperfect  transcript 
of  Jeflerson's ;  was  made  by  Americans  chiefly  from  Louisiana, 
Mississippi,  Alabama,  Tennessee,  and  Kentucky,  and  omitted  Jef- 
ferson's dictum,  "all  men  are  created  equal."  The  constitution 
of  Texas  of  1836  was  closely  modelled  after  those  of  the  five 
States  above  mentioned,  but  was  more  restrictive  than  any  of 
them  of  the  immigration  of  free  negroes  and  of  the  power  of  the 
Legislature  to  emancipate  slaves.  It  was  the  ultra  pro-slavery 
constitution  thus  far  made.  It  became  the  basis  of  the  constitu- 
tion of  1845.  The  declaration  given  by  Poore  was  adopted  by 
the  consultation  at  San  Felipe  de  Austria,  in  November,  1835,  and 
refers  to  the  Mexican  Constitution  of  1824.  The  actual  declara- 
tion passed  March  2,  1836,  is  not  given  by  Poore.  See  the 
Journal  of  the  Convention  (General  Council  of  the  Republic  of 
Texas)  November  14,  1835,  to  March  11,  1836.     Houston  :  1839. 

t  April  II,  1838. 

*  April  25,  1838.     Treaties  and  Conventions,  107S-1080. 

2>Z^ 


opposing  Sentiments  About  Texas 

lute  vote  which,  seventeen  years  before,  had  sup- 
ported Randolph  and  Lowndes  in  their  opposition 
to  slavery  restriction  now  brought  forth  a  harvest 
of  public  sentiment  in  the  South.  On  Christmas 
Day,  1837,  the  Legislature  of  Alabama  gave  ex- 
pression to  this  in  a  joint  resolution  for  the  reannex- 
ation  of  Texas.  Similar  resolutions  were  passed 
by  other  Southern  Legislatures.  Those  of  the 
North  passed  counter- resolutions.*     The  country 

*  The  conflicting  and  ominous  elements  in  public  opinion 
from  1835  to  1850  are  nowhere  more  plainly  and  significantly 
indicated  than  by  the  acts  and  joint  resolutions  of  the  State  Leg- 
islatures respecting  Oregon,  Texas,  and  slavery.  The  principal 
resolutions  and  acts  are  as  follows: 

Alabama.— Joint  resolutions  for  annexation  of  Texas,  Decem- 
ber 25,  1837,  and  January  i,  1842.  Another  sympathizing  with 
Virginia  {z'n  re  the  resolutions  of  New  York,  April  11,  1842,  as  to 
refusing  return  of  fugitive  slaves),  "  a  dangerous  and  alarming  at' 
tack  upon  Southern  rights,"  February  14,  1843.  "The  right  to 
exercise  power  (over  slavery)  by  a  State  is  higher  and  deeper  than 
the  Constitution,"  resolution  of  January  27,  1845.  Alabama  will 
act  in  concert  and  make  common  cause  with  other  slave  States 
for  the  defence  of  the  institution  of  slavery — Congress  has  no 
power  over  the  institution,  resolution  of  March  6,  1848. 

Delaware. — Joint  resolution  —  the  addition  of  slave  territory 
hostile  to  the  spirit  of  free  institutions  and  contrary  to  sound 
morality,  February  25,  1847. 

Florida.  —  Joint  resolution  that  "Congress  has  no  power 
to  abolish  slavery  in  the  District  of  Columbia  or  to  prohib- 
it it  south  of  36°  30'.  Florida  ready  to  join  Virginia,  South 
Carolina,  North  Carolina,"  etc.,  "for  defence  of  our  rights." 
"whether  through  a  Southern  convention  or  otherwise,"  Jan- 
uary 13,  1849. 

Georgia. — Elaborate  resolution  on  "  Federal  relations,"  Wil- 
mot  proviso,  slavery  extension,  etc.,  February  8,  1850. 

Illinois. — Joint  resolution  favoring  the  occupation  of  Oregon, 
February  21,  1843  ;  to  54°  40',  February  27,  1845  ;  same  date,  one 
favoring  "  reannexation  "  of  Texas. 

Kentucky. — Joint  resolution  :  The  United  States  should  assert 

I.— Y  337 


Constitutional  History  of  tJjc  American  People 

was  again  divided.  Like  the  ants,  the  people  for- 
got that  their  roof  had  recently  fallen  about  their 
ears.  Public  sentiment  North  was  arrayed  against 
public   sentiment   South.      For  a  time    its   vehe- 

its  rights  and  occupy  Oregon,  February  27,  1843.  See  also  on 
Federal  relations,  March  i,  1847. 

Louisiana.  —  Joint  resolution  proposing  a  convention  of  the 
slave- holding  States  to  obtain  respect  for  their  institutions, 
"  peaceably  if  they  can,  forcibly  if  they  must."  Resolution  of 
February  20,  1837. 

Massachusetts.  —  Joint  resolution  against  the  annexation  of 
Texas,  March  16,  1838  ;  against  the  admission  of  new  slave  States, 
April  23,  1838  ;  also,  of  same  date,  resolution  that  Congress  by  the 
Constitution  has  power  to  abolish  the  slave  traffic  between  the 
States.  The  admission  of  Texas  dangerous  to  the  peace  of  the 
Union,  March  17,  1843. 

Michigan. — Joint  resolution,  March  1 1,  1844,  that  the  joint  oc- 
cupancy of  it  with  Great  Britain  should  cease  ,  that  our  claim 
to  54°  40'  is  "clear  and  incontestable,"  January  4,  1846  ;  that  the 
Mexican  War  was  justifiable,  February  13,  1847;  that  slavery 
"is  a  mere  local  institution  without  positive  law";  that  the  prin- 
ciple of  the  Ordinance  of  1787  is  fundamental,  and  that  Congress 
has  the  power  and  the  duty  to  prohibit  slavery  in  any  United 
States  territory  now  or  to  be  acquired.  January  13,  1849.  Joint 
resolution  favoring  the  admission  of  California,  February  23,  1850. 

Mississippi. — Joint  resolution  like  the  last  of  Alabama,  Feb- 
ruary 6,  1841.  For  annexation  of  Texas,  February  25,  1842.  Res- 
olution approving  and  vindicating  the  Mexican  War,  March  4, 
1848  ;  on  Federal  relations,  March  6,  1850  ;  on  California,  March  5, 
1850.    Very  elaborate,  pro-slavery,  and  favoring  State  sovereignty. 

New  Hampshire. — Joint  resolution  for  the  "  reannexation  of 
Texas,"  December  28,  1844,  and  another  disapproving  of  "  British 
interference"  in  Texas,  July  2,  1845.  Joint  resolution  that  "the 
Ordinance  of  1787  should  be  extended  over  Texas,"  December  29, 
1848.  Slavery  should  be  excluded  from  New  Mexico  and  Cali- 
fornia, January  4,  1849.  No  more  slave  States,  "all  men  created 
equal";  New  Hampshire  "pledged  for  freedom";  no  slavery  in 
Oregon,  July  10,  1846. 

New  York. — Joint  resolution  disapproving  Governor  Seward's 
refusal  to  return  fugitive  slaves  (to  Virginia),  because  slavery  is 
not  felony  within  meaning  of  the  United  Slates  Court,  Art.  iv., 

338 


The  Conquest  of  Mexico 

mence  was  restrained  by  the  invasion  and  con- 
quest of  Mexico.  But  victory  could  only  aggra- 
vate the  differences  between  the  States,  because  it 
extended   the   boundaries   of  the  country  to   the 

Sec.  2;  the  Legislature  resolves  that  it  is,  April  ii,  1842.  This 
act  of  the  Governor  provoked  counter- resolutions  in  Virginia, 
South  Carolina,  Georgia,  Florida,  Louisiana,  Kentucky,  Alabama, 
and  Mississippi.  Extension  of  slavery  into  the  Territories  should 
be  forbidden,  resolutions  of  January  27,  1847,  and  January  13, 
1848;  the  laws  of  Texas  and  slavery  should  be  excluded  from 
the  region  between  the  Neches  and  the  Rio  Grande  and  from 
New  Mexico,  east  of  the  Rio  Grande,  resolution  of  January  4, 
1849.  Extension  of  slavery  to  California  should  be  forbidden 
and  Congress  should  abolish  the  slave-trade  in  the  District  of 
Columbia,  resolution  of  January  16,  1850. 

Ohio. — Joint  resolution  that  slavery  should  be  excluded  from 
Oregon,  February  8,  1847;  that  Congress  has  power  to  exclude 
it  from  acquired  territory,  February  24,  1848;  that  the  Ordinance 
of  1787  should  be  extended  to  territory  acquired  from  Mexico, 
February  13,  1847;  February  25,  1848. 

Pennsylvania. — Joint  resolution  instructing  the  Senators  and 
Representatives  in  Congress  to  vote  against  the  acquisition  of 
new  territory  unless  slavery  be  prohibited,  January  22,  1847. 

South  Carolina. — Joint  resolution  advocating  a  call  for  a  con- 
vention or  Southern  congress  "  to  arrest  further  aggressions  and 
restrictions  on  the  rights  of  the  South,"  December  20,  1850. 
Compare  resolutions  of  December  17,  1841.  The  commonwealth 
put  into  a  "  state  of  defence,"  act  of  December  20,  1850. 

Tennessee. — Joint  resolution  in  favor  of  annexation  of  Texas, 
January  20,  1838;  another  for  its  admission  into  the  Union,  "on 
an  equal  footing  with  the  sovereign  States  of  these  United 
States  of  America,"  February  7,  1842. 

Vermont. — Joint  resolution  against  annexation  of  Texas ;  for 
abolition  of  slavery  in  the  District  of  Columbia  and  in  the  Terri- 
tories:  joint  resolution  given  in  "Acts  and  Resolutions  of  1838," 
p.  23.  The  perpetuation  of  slavery  a  violation  of  the  national 
compact.  1844. 

Virginia. — Joint  resolution  that  Congress  can  impose  no  con- 
dition on  slavery  extension,  as  such  limitation  is  not  within  its 
power;  laws  preventing  the  removal  of  slave  property  to  a  Terri- 
tory unconstitutional   and    in  violation    of   the    Missouri   Com- 

339 


Constitutional  History  of  tJjc  American  People 

Pacific.  The  acquisition  from  Mexico  became  at 
once  a  new  subject  for  controversy. 

The  Texas  question,  and  all  that  it  involved,  did 
not  suddenly  supplant  in  popular  interest  the 
question  of  State  banks  and  internal  improve- 
ments. But  it  was  an  open  cause  of  division  be- 
tween the  sections.  They  were  less  divided  over 
the  Oregon  question.  The  boundaries  of  the 
Oregon  country  no  man  knew.  Its  joint  occupa- 
tion by  Great  Britain  and  the  United  States  only 
postponed  a  struggle.  Public  opinion  found  ex- 
pression here  and  there  in  the  resolutions  of  State 
Legislatures  favoring  the  "immediate  occupation 
of  all  Oregon,"  and  this  meant  to  54°  40'  north  lati- 
tude. New  England,  for  a  time  alarmed  at  the 
prospectiv^e  dismemberment  of  Maine  in  settling 
the  northeastern  boundary,  delivered  herself  of 
strong  State -sovereignty  notions  and  appeals  to 
the  States,*  but  finally  acquiesced  in  the  decision 

promise,  March  8,  18-I.7.  See  also  the  joint  resolution  on  the 
Wilmot  proviso,  January  20,  1849. 

Wisconsin. — Joint  resolution  favoring  the  application  of  the 
Ordinance  of  1787  to  all  new  territory,  June  21,  1848.  Joint 
resolution  favoring  the  "immediate  occupation  of  Oregon," Jan- 
uary 13,  1844. 

*  See  the  following  authorities  having  reference  to  this  sub- 
ject: Resolutions  of  the  Massachusetts  Legislature,  February  9, 
1830,  protesting  against  the  adoption  of  the  decision  of  the  King 
of  the  Netherlands  and  declaring  it  to  be  in  violation  of  the 
rights  of  the  State  as  secured  by  the  Federal  Constitution,  and 
"consequently  null  and  void  and  in  no  ways  obligatory  upon  the 
government  or  people."  Resolutions  of  February  24,  1826;  Feb- 
ruary 15,  1832;  March  23,  1832;  March  14,  1836,  and  April  19, 
1838,  the  latter  declaring  that  no  power  is  delegated  by  the  Con- 
stitution of  the  United  States  to  Congress  authorizing  it  to  cede 
to  a  foreign  nation  any  territory  lying  within  the  limits  of  either 

340 


opposition  to  the  Federal  System 

under  the  Webster- Ashburton  treaty  of  1842.* 
The  hostile  attitude  of  Maine  for  a  time  indicated 
how  thoroughly  the  doctrines  of  '98  possessed  the 
people  of  a  State  when  they  thought  themselves 
injured  by  the  general  government.  Objections 
of  this  kind,  North  or  South,  all  tended  to  become 
obstacles  in  the  pathway  of  the  national  idea. 

of  the  States  of  the  Union.  Resolutions  of  March  26,  1839; 
March  13,  i84i,and  March  3,  1842.  Resolutions  of  Maine  Legis- 
lature, February  28,  1831,  that  the  convention  of  the  United  States 
with  Great  Britain,  made  in  September,  1827,  tended  to  violate 
the  Constitution  of  the  United  States  and  to  impair  the  sovereign 
rights  and  powers  of  the  State  of  Maine,  and  that  Maine  is  not 
bound  by  the  Constitution  to  submit  to  the  decision  which  is  or 
shall  be  made  under  the  convention.  Resolutions  of  the  Maine 
Legislature,  January  19,  1832,  that  the  United  States  has  only  a 
"special  and  modified  sovereignty."  Governor  Enoch  Lincoln's 
message  of  January  8,  1829:  "  By  Senators  in  Congress  we  repre- 
sent our  aggregate  and  consolidated  population  in  its  common 
and  combined  wants  and  demands.  It  is  the  senatorial  rep- 
resentative who  is  to  appear  for  us  all  against  invasion  of  the 
sovereignty  which  belongs  to  the  republic."  Laws  of  Maine,  1829, 
p.  II.  The  question  of  State  sovereignty  involved  in  the  Alien 
and  Sedition  laws,  the  Virginia  and  Kentucky  resolutions,  the 
tarifT  in  South  Carolina  in  1828,  the  taxation  of  the  United  States 
Bank  by  Ohio  in  1820,  and  the  settlement  of  the  northeastern 
boundary,  brought  out  a  mass  of  resolutions  by  State  Legislat- 
ures. Many  of  these  are  given  in  a  pamphlet  entitled  The  Vir- 
ginia and  Kentucky  Resolutions  of  1798  and  '99;  with  Jefferson's 
Original  Draught  thereof.  Also  Madison's  Report,  Calhoun's 
Address,  Resolutions  of  the  Several  States  in  relation  to  State 
Rights.  With  other  Documents  in  Support  of  the  JefTersonian 
Doctrines  of  '98.  "  Liberty — The  Constitution — Union."  Pub- 
lished by  Jonathan  Elliot,  Washington  :  May,  mdcccxxxii.  ;  82  pp. 
Maine  and  Massachusetts  were  present,  in  their  commissioners, 
when,  at  Washington,  in  June,  1842,  Lord  Ashburton  and  Webster 
signed  the  treaty.  The  northeastern  boundary  question  was  thus, 
at  last,  amicably  settled.  New  England  had  declared,  but  not 
applied,  the  doctrine  of  State  sovereignty. 
*  Treaties  and  Conventions,  432-438. 

341 


Const  it  lit  ioiial  Historr  of  tin'  American  People 

Russia,  in  1S24,  agreed  witli  the  United  States 
by  treaty  that  the  boundary  between  the  two 
countries  should  be  along  the  line  of  54°  40',  thus 
laying  a  foundation  for  the  extreme  American 
claim.*  But  the  Oregon  country  was  far  from 
Washington,  and  was  of  slight  commercial  interest 
to  the  East,  Its  boundaries  seemed  of  no  mo- 
ment, as  probably  population  would  not  reach  the 
country  for  centuries.  The  treaty  of  1846  with 
England,!  fixing  the  boundary  along  the  forty-ninth 
parallel, did  not  provoke  great  public  interest.  This 
treaty  settled  the  northwestern  boundary  as  far  as 
Puget  Sound.  On  the  2d  of  February,  two  years 
later,  by  the  treaty  of  Guadalupe- Hidalgo, |  the 
boundaries  of  the  purchase  from  Mexico  were  es- 
tablished. Thus,  by  the  middle  of  the  century  de- 
mocracy in  America  was  in  possession  of  the  heart 
of  the  continent  from  ocean  to  ocean,  from  the 
great  lakes  to  the  Rio  Grande.  Florida  was  out  of 
the  lines  of  migration.  Immigrants  in  the  North 
were  passing  into  Michigan,  Illinois,  Wisconsin, 
and  Iowa;  in  the  South  the  tide  flowed  into 
Texas.  As  an  inducement  to  settle  in  Florida, 
Congress  §  now  offered  a  quarter  of  a  section  of 
land  to  any  person,  being  the  head  of  a  family  or 
a  single  man  over  eighteen  years  of  age,  able  to 
bear  arms,  who,  within  a  year,  would  settle  in  East 
Florida.  The  population  of  the  Territory  had 
doubled    in    twenty   years,   but   was    still    small. || 

*  Treaties  and  Conventions,  931-3.       t  fd.,  438-9. 

X  Id.,  681-694.  §  Act  of  August  4,  1842. 

II  Population,  1830,  34,730;   1840,  54,477;  1850,  87,445. 

342 


Texas  Admitted  by  a  Unique  Resolution 

The  effect  of  the  act  was  immediate.  In  ten 
years  population  increased  over  thirty  thousand. 
The  rush  of  settlers  caused  numberless  land  dis- 
putes, so  that  Congress  found  it  necessary  to  re- 
vise the  late  act.  As  early  as  1838*  a  convention 
had  assembled  at  St.  Joseph's  and  formed  a  con- 
stitution, but  seven  years  passed  before  Congress 
passed  an  enabling  act.t  It  applied  alike  to  Flor- 
ida and  Iowa,  and  admitted  both  States.  But  Iowa, 
dissatisfied  with  the  boundaries  imposed  by  the 
act,  refused  to  enter  the  Union  with  them.  Con- 
gress passed  a  supplementary  act  on  the  same  day 
relative  to  Iowa,  and  in  the  following  year,^  in  a 
third  act,  again  defined  the  boundaries  and  referred 
the  boundary  dispute  between  it  and  Missouri  to 
the  Supreme  Court.  This  act  made  the  usual 
grant  of  lands  for  schools,  public  buildings,  and 
internal  improvements,  and  admitted  the  State 
on  the  28th  of  December.§  On  the  ist  of  March, 
1845,  the  popular  clamor  for  the  reannexation  of 
Texas  was  satisfied  by  a  joint  resolution  of  Con- 
gress, which  remains  unique  in  our  history. 
Texas  was  not  asked  to  adopt  a  constitution  in 
conformity  with  that  of  the  United  States.  The 
condition  imposed  by  Congress  was  the  submis- 
sion to  it  of  all  questions  of  boundaries.  A  State 
constitution  should  be  made,  and,  with   evidence 

*  December  3d.  f  March  3,  1845.  |  August  4,  1846. 

§  See  journal  of  this  convention,  held  May  4-19,  1846;  Iowa 
City,  1846.  Also,  the  Documentary  Material  Relating  to  the 
History  of  Iowa,  edited  by  Benjamin  F.  Shambaugh,  Nos.  i.-viii. ; 
published  by  the  State  Historical  Society  of  Iowa. 

343 


Const itiitional  History  of  the  American  People 

of  its  adoption,  should  be  sent  to  the  President,  to 
be  laid  before  Congress  by  the  ist  of  January,  1846. 
The  United  States  should  not  be  charged  with 
the  liabilities  of  the  late  republic.  It  retained  its 
public  lands.  With  its  consent,  four  States,  or 
less,  might  be  formed  out  of  its  domain  and  be 
entitled  to  admission  into  the  Union.  All  formed 
south  of  the  line  of  the  Missouri  Compromise 
should  be  admitted  with  or  without  slavery  as  the 
people  of  each  State  should  decide.  North  of  the 
line  slavery  was  prohibited. 

On  the  4th  of  July,  1845,  a  convention  met  at 
Austin,  and  completed  a  State  constitution  late 
in  August,*  It  was  submitted  to  popular  vote 
and  ratified.!  The  vote  bore  small  ratio  to  the 
population.  At  this  time  there  were  upwards  of 
fifty  thousand  men  in  the  State,  most  of  whom 
were  slaves.     Many,  especially  the   native   Mexi- 

*  August  27th. 

t  Four  thousand  one  hundred  and  seventy-four  to  three  hun- 
dred and  twelve.  See  the  following  works  relating  to  this  sub- 
ject:  The  Constitution  of  the  Republic  of  Mexico  and  of  the 
State  of  Coahuila  and  Texas,  containing  also  an  abridgment  of 
the  Laws  of  the  General  and  State  Governments  relating  to  Col- 
onization, with  Sundry  other  Laws  and  Documents,  not  before 
published,  particularly  relating  to  Coahuila  and  Texas,  the  Docu- 
ments relating  to  the  Galveston  Bay  and  Texas  Land  Company; 
the  Grants  to  Messrs.  Wilson  and  Exter,  and  to  Colonel  John 
Dominguez.  With  a  description  of  the  soil,  climate,  productions, 
local  and  commercial  advantages  of  that  interesting  country. 
New  York,  1832.  Journal  of  the  Convention,  October  16  to  No- 
vember 14,  1835  ;  Houston,  1838.  Journal  of  the  General  Council 
of  the  Republic  of  Texas,  November  14,  1835,  to  March  11,  1836; 
Houston,  1839.  Journal  of  the  Convention  of  July  4  to  August 
28, 1845  ;  Austin,  1845.  Debates  of  same,  W.  F.  Weeks,  reporter ; 
Houston,  1846. 

344 


IVisconsin  Made  a  State 

cans,  did  not  vote.  It  was  the  American  party 
that  made  the  constitution  and  carried  it  through. 
It  was  this  party  that,  from  first  to  last,  effected 
reannexation.  Congress  accepted  the  constitu- 
tion, extended  the  laws  of  the  United  States  over 
Texas,  and  admitted  it  by  joint  resolution.* 

Wisconsin  was  now  asking  admission.  Con- 
gress passed  the  requisite  act  in  August,!  and  on 
the  15th  of  October  a  convention  assembled  at 
Madison.  Its  work  was  rejected  by  the  electors, 
and  another  convention  assembled  at  the  same 
place  late  in  the  following  year.|  The  constitu- 
tion it  submitted  was  approved  by  the  electors  in 
March  and  by  Congress  in  May.§  In  ten  years 
the  population  of  Wisconsin  increased  from  thirty 
thousand  to  three  hundred  thousand.  || 

California  comprised  the  greater  part  of  the 
Mexican  acquisition,  for  by  that  name  the  country 
from  Texas  to  the  Pacific  was  known  in  the  East. 
Congress  extended  the  revenue  laws  over  it,  and 
made  San  Francisco  a  port  of  entry.]|  Violations 
of  law  were  to  be  prosecuted  in  the  Supreme  Court 
of  Oregon,  or  in  the  District  Court  of  Louisiana. 

*  December  29th.  f  August  6,  1846. 

I  See  Journal  of  the  Convention  to  Form  a  Constitution  for 
the  State  of  Wisconsin,  Begun  and  Held  at  Madison,  on  the  Fifth 
day  of  October,  One  Thousand  Eight  Hundred  and  Forty-six  ; 
Madison,  W.  T.,  1847.  Also,  Journal  of  the  Convention  to  Form 
a  Constitution  for  the  State  of  Wisconsin,  with  a  Sketch  of  the 
Debates,  Begun  and  Held  at  Madison,  on  the  Fifteenth  day  of 
December,  Eighteen  Hundred  and  Forty-seven;  Madison,  W.  T., 
1848.  §  The  State  was  admitted  May  29,  1847. 

II  Population,  1840,  30,945;  1850,  305,391. 
^  Act  of  March  3.  1849. 

345 


Coiistitittional  Hisforv  of  ilk'  American  People 

Vermont,  Kentucky,  and  Tennessee  had  never 
been  organized  as  Territories.  Texas  and  Califor- 
nia were  to  be  similar  exceptions.  As  soon  as 
news  of  the  discovery  of  gold  in  California  spread 
abroad,  all  the  world  set  its  face  towards  the 
gold-diggings.  While  Congress  was  debating 
whether  California  should  be  organized  as  a  Ter- 
ritory, more  than  two  hundred  thousand  men  had 
arrived  on  the  coast  and  were  transforming  it  into 
a  State.  Their  civil  necessities  quickly  outran 
the  performance  of  Congress.  A  convention  as- 
sembled at  Monterey*  on  the  ist  of  September,  and 
its  work  was  approved  by  the  electors  in  November. 
A  year  and  nine  days  after  the  convention  met 
Congress  admitted  the  State — the  thirty-first  in 
the  Union.  It  came  in  as  free  soil.  The  balance 
of  power  between  the  States  was  broken.  Public 
opinion  again  found  expression  in  the  resolutions 
of  the  State  Legislatures — some  favoring,  some  op- 
posing the  further  extension  of  slavery.  Its  restric- 
tion was  viewed  with  alarm  by  the  slave-holding 
States,  and  their  expostulatory  resolutions  sounded 
a  cry  for  a  Southern  convention.  Some  slave-hold- 
ing States  made  provisions  for  military  protection. 
The  doctrine  of  '98  seemed  on  the  point  of  being 
put  to  practical  test.f 

An  act  creating  the  Territory  of  Minnesota  pass- 


*  See  Report  of  the  Debates  in  the  Convention  of  California 
on  the  Formation  of  the  State  Constitution,  in  September  and 
October,  1849.  By  J.  Ross  Browne.  Washington  :  Printed  by 
John  T.  Towers,  1850.     See  also  Vol.  ii..  Chapters  x..  xi.,  xii. 

f  See  note,  pp.  340  et  seq. 

346 


The  Territories  of  Minnesota  and  Oregon 

ed  earl}'-  in  March.*  Congress  limited  the  franchise 
to  free  white  men,  and  followed  the  Territorial 
precedents  of  the  Northwest.  As  Minnesota  was 
organized  out  of  Wisconsin,  the  laws  of  the  latter 
were  continued  in  force  as  far  as  was  consistent 
with  the  recent  act.  The  new  Territory  contained 
about  six  thousand  people,t  and  was  divided  into 
nine  counties.  Oregon  had  been  a  theme  for  debate 
in  Congress,  more  or  less,  for  twenty  years.  It 
was  too  far  away  to  awaken  much  popular  interest, 
and  no  man's  seat  in  Congress  depended  upon  his 
advocacy  of  its  claims.  Immigrants  were  arriv- 
ing in  large  numbers,  and  were  demanding  a  Ter- 
ritorial government.  National  parties  made  Ore- 
gon the  substance  of  planks  in  their  platforms,  but 
these  did  not  make  a  passable  road  to  Astoria. 
Finally,  Congress  erected  the  country  into  a  Ter- 
ritory,^  providing  also  that  it  might  be  subdivided 
into  two  Territories.  The  model  followed  was 
that  of  Minnesota.  Only  white  men  could  vote 
or  hold  office.  The  act  contained  a  new  provi- 
sion, that  recalled  the  panic  of  't^j — the  Territori- 
al Legislature  was  forbidden  to  incorporate  a  bank, 
or  to  grant  any  institution  banking  powers,  or  to 
pledge  the  credit  of  the  Territory  for  any  loan. 
Nor  could  it  give  any  privilege  of  making  or  cir- 
culating bank-bills,  or  bills  of  exchange,  or  any- 
thing like  them.  This  indicated  that  the  lessons 
of  '2>7  were  not  forgotten.  Another  lesson  call- 
ing for  reform,  too,  was   remembered:   henceforth 

*  March  3,  1849.  t  Population,  1850,  6077. 

X  Act  of  August  14,  1848. 

347 


Const  it  lit  ioiial  History  of  tlv  American  People 

every  law  must  embrace  but  one  object,  which 
must  be  expressed  in  its  title.  This  was  an  early 
attempt  to  stop  the  evil  of  including  vicious  legis- 
lation under  the  phrase  of  the  title  "  and  for  other 
purposes."  A  provision  of  local  importance  for- 
bade the  obstruction  of  streams  that  would  prevent 
the  salmon  from  passing  up  and  down  them  freely. 
The  antislavery  provision  of  the  Ordinance  of  1787 
was  imposed  upon  the  Territory,  thus  making  it 
free  soil  forever.  Two  years  earlier*  the  joint 
occupation  of  the  country  had,  by  resolution  of 
Congress,  come  to  an  end.  An  appropriation  was 
made  for  a  military  station  on  the  line  of  com- 
munication to  Oregon,  and,  to  encourage  immigra- 
tion, the  Secretary  of  War  was  authorized!  to  fur- 
nish all  applicants  who  designed  to  emigrate  to 
Oregon,  California,  and  New  Mexico  with  such 
arms,  munitions,  and  stores  as  might  be  required. 
The  treaty  of  1846  settled  all  controversy  with 
Great  Britain  respecting  title  to  the  country. 

On  the  day  when  California  was  admitted  the 
northwestern  boundary  of  Texas  was  settled ; 
Texas  ceded  a  large  region  of  country  to  the 
United  States  for  ten  million  five  per  cent,  stock, 
and  Congress  organized  the  Territories  of  New 
Mexico^  and  Utah.§  The  franchise  was  limited, 
as  usual,  to  white  men.  In  New  Mexico  the 
white  population  clustered  about  a  few  old  Span- 
ish towns;  in  Utah  it  comprised  the  new  Mor- 
mon settlements  at  Salt  Lake.     By  the  organiza- 

*  April  27,  1846.  t  March  2,  1849. 

X  Population,  1850,61,547.  §  Population,  1850,  11,380. 

348 


Civili{atlon  Trending  IVestward 

tion  of  Utah  and  New  Mexico  the  last  link  of 
local  civil  orovernment  between  Maine  and  Call- 

o 

fornia  was  completed.  Except  the  unorganized 
Indian  country,  every  foot  of  American  soil  was 
now  subject  to  the  law  of  State  or  Territory.  Of 
States  there  were  thirty-one;  of  Territories,  five. 
The  line  of  the  Missouri  Compromise  divided  the 
public  domain  into  free  and  slave  soil.  Geo- 
graphically, the  division  was  equal,  except  the 
southern  part  of  California.  This  extended  below 
the  line. 

Three  -  quarters  of  a  century  had  now  passed 
since  the  Declaration  of  Independence.  Popula- 
tion had  increased  from  two  and  a  half  to  twen- 
ty-three millions,  and  the  public  domain  from 
less  than  nine  hundred  thousand  to  nearly  three 
million  square  miles.  During  this  time  the  centre 
of  population  had  moved  westward  nearly  four 
miles,  on  an  average,  each  year.  The  frontier  had 
reached  the  Pacific,  but  in  the  middle  of  the  con- 
tinent there  lay  a  wilderness,  more  than  a  thou- 
sand miles  wide,  whose  eastern  edge  was  in  Iowa, 
whose  western  was  at  the  Nevada  mountains. 
The  ceaseless  tide  of  immifjration  had  reached 
the  Indian  tribes,  had  surrounded  their  best  lands, 
had  extinguished  their  titles,  and  had  compelled 
them  to  migrate  into  the  Indian  country.  About 
the  middle  of  the  century  the  white  man  and  the 
Indian  stood  face  to  face  in  the  centre  of  the  con- 
tinent, disputing  for  its  sovereignty.  The  history 
of  the  tribes  east  of  the  great  river  during  the  first 
half  of  the  century  was  to  be  repeated  west  of  it 

349 


Cousfitutional  History  of  the  American  People 

during  the  second  half.  No  political  party  had 
raised  a  voice  for  the  Indian,  and  but  one  State 
had  made  it  possible  for  him  to  become  an  Amer- 
ican citizen.* 

Within  a  few  years  foreigners  had  begun  to  ar- 
rive in  large  numbers.!  Nine-tenths  of  the  popu- 
lation were,  however,  native-born  ;  yet  the  number 
of  foreigners  in  the  country  was  nearly  equal  to 
its  population  at  the  outbreak  of  the  Revolution. 
Native-Americanism  discriminated  against  the  for- 
eigner, but  its  force  was  impotent,  except  in  the 
slave-holding  States. |  It  followed  that  the  North- 
ern States  and  Territories  profited  by  their  com- 
ing, and  in  the  Northwest  there  was  rivalry  among 
the  States  to  make  them  welcome. §  Gradually  some 
parts  of  the  West,  as  in  Wisconsin,  came  to  con- 
sist largely  of  foreign  settlements.  The  laws  were 
printed  in  German  in  several  States,  and  news- 
papers in  the  language  of  the  new-comers  began 
to  appear.  The  Irish  did  not  go  West.  They 
preferred  the  cities  and  towns  of  the  East,  but 
many  of  them  found  temporary  employment  on 
the  railroads  and  canals  in  course  of  construction 
all  over  the  North.  Their  sons  were  sent  to  school, 
and  the  next  generation  of  Americans  included 
them  among  its  successful  merchants,  doctors,  law- 

*  Wisconsin,  constitution  of  1848,  Art.  iii.,  Sec.  i. 

t  Since  1841. 

+  See  the  debates  in  the  Louisiana  Convention  of  1845,  '^i  the 
Kentucky  Convention  of  1849,  'ind  in  the  Virginia  and  Alaryland 
conventions  of  1850. 

§  See  the  Wisconsin  Convention  debates  of  1847  and  the  de- 
bates in  the  Convention  of  Michigan  in  1850. 

350 


Building  Up  the  Cities  of  the  [Vest 

yers,  preachers,  and  politicians.  The  Germans 
wanted  farms,  and  therefore  they  passed  west- 
ward, locating  all  the  way  from  New  York  to 
Iowa.  Canadian  immigrants  located  near  the 
great  lakes  engaged  in  farming,  and,  to  a  larger 
extent,  in  milling  and  in  starting  great  lumber 
industries.  A  few  Englishmen  and  Scotchmen 
settled  in  the  South,  became  prosperous  plant- 
ers and  earnest  advocates  of  slavery.  Their  sons 
usually  entered  politics  and  became  highly  influ- 
ential. The  Irish,  the  Germans,  the  Scandinavians, 
and  the  Canadians  sedulously  avoided  slave  soil. 
They  were  men  who  had  to  work  for  a  living. 

The  number  of  cities  containing  eight  thousand 
people,  like  the  urban  population,  had  doubled  in 
ten  years.  New  York,  the  largest  city  in  the 
country,  contained  a  little  over  five  hundred  thou- 
sand people.*  No  longer  was  the  increase  in  city 
population  limited  to  the  Atlantic  seaboard.  The 
large  towns  in  Ohio — Cleveland,  Akron,  Columbus, 
Dayton,  Cincinnati ;  in  Indiana — Fort  Wayne,  In- 
dianapolis ;  in  Michigan,  Detroit;  in  Wisconsin, 
Milwaukee  ;  in  Illinois  —  Chicago,  Joliet,  Peoria, 
Quincy ;  in  Iowa — Dubuque,  Burlington;  in  Mis- 
souri, St.  Louis  and  Kansas  City — were  gaining 
more  rapidly  than  the  towns  of  the  East.  They 
were  fast  becoming  manufacturing  centres,  and 
around  them  lay  rich  farms  and  near  them  pros- 
perous villages.  In  these  the  conspicuous  buildings 
were  the  school-house  and  the  churches  ;  and  in  the 

*  In  1850,  515,547. 
351 


Consfitiitioiial  History  of  the  American  People 

larger  towns,  these  and  the  factories.  The  houses 
in  the  West  were  generally  of  wood.  In  the  East, 
brick  and  stone  had  been  commonly  used  since 
the  country  was  settled.  Throughout  the  North, 
in  the  New  England  and  New  York  belt,  the  dwell- 
ing-houses were  usually  of  the  New  England  style, 
built  of  wood,  painted  white,  with  green  blinds.  In 
the  South,  the  richer  planters  lived  in  commodious 
mansions,  whose  architecture  would  now  be  called 
colonial.  Both  North  and  South  abounded  in  log- 
houses  and  unpainted  one-story  cabins. 

Wealth  was  the  dispenser  of  social  rank ;  less 
was  made  of  ancestral  distinctions  than  now.  It 
was  a  new  country,  and  the  most  populous  cen- 
tres were  not  two  hours'  trav^el  from  wild  lands  or 
primeval  forests.  Few  homes  had  the  luxuries 
now  common.  If  there  were  rugs  or  carpets,  they 
were  mostly  home-made.  Rarely  were  there  pict- 
ures or  that  miscellaneous  collection  of  orna- 
ments we  call  bric-a-brac.  Wall-paper  was  a 
luxury.  Organs  and  pianos  were  almost  unknown. 
To  own  a  melodeon  or  a  dulcimer  was  evidence  of 
wealth  and  elegance ;  to  play  either  gave  distinction. 
Rarely  did  a  church  have  an  organ,  but  the  leader 
of  the  choir  had  a  tuning-fork.  As  yet  no  church 
was  struggling  over  the  question  whether  to  call  a 
minister  or  to  buy  a  pipe -organ.  Churches  were 
usually  built  by  local  carpenters,  who  donated  their 
work.  These  buildings  were  barren  of  ornamenta- 
tion, were  never  elegant,  and  rarely  comfortable.  The 
building  was  one  vast  room,  planned  to  contain  the 
preacher  and   his  listeners.     The   early  churches 

352 


Early  Religious  Practices  of  tlje  People 

were  not  heated.  With  prosperity  came  huge  box- 
stoves,  long  enough  to  burn  four-foot  wood.  Usu- 
ally the  stoves  were  set  near  the  doors,  in  a  location 
conveniently  accessible  to  the  wood-pile.  The  sinu- 
ous stove-pipe  ran  near  the  ceiling,  the  full  length  of 
the  church.  Forests  were  consumed,  but  a  church 
was  rarely  warm.  There  were  no  separate  rooms 
or  adjoining  buildings  for  Sunday-schools  or  church 
entertainments.  Indeed,  except  the  too -frequent 
lottery,  by  means  of  which  the  church  was  built 
or  the  minister  paid,  church  entertainments  were 
quite  unknown.  In  summer-time,  betwixt  haying 
and  harvest,  or  in  the  autumn,  after  the  harvest 
was  gathered,  here  and  there  over  the  country 
might  be  heard  the  voices  of  great  camp-meetings. 
About  the  time  when  Lincoln  was  first  a  candidate 
for  the  Assembly  these  meetings  were  religious 
caravansaries.  Gradually  the  Presbyterians,  who 
seem  to  have  originated  them,  abandoned  them  to 
the  Baptists  and  Methodists.  In  many  parts  of 
the  country  they  were  relied  on  as  the  only  prac- 
ticable method  of  bringing  the  people  together 
for  religious  worship.  They  were  attended,  not  in- 
frequently, by  all  the  population  within  a  circuit  of 
fifty  miles.  Amid  profound  and  irrepressible  ex- 
citement sermons  were  preached  which  strongly 
moved  the  listeners,  and  which  lingered  long  in 
the  memory  as  events  of  a  lifetime. 

Some  of  us  who  remember  in  our  school-readers 

William  Wirt's  touching  description  of  the  blind 

preacher  may  have  wondered  in  our  mature  years 

whether  that    majestic    figure  which    Wirt  drew 

I— z  353 


Constitutional  History  of  the  American  People 

existed  only  in  his  fancy.  But  as  we  retrace  the 
century  and  revisit  its  eventful  scenes,  we  hear 
and  see  many  such  leaders  of  the  flock  as  Wirt 
describes — earnest,  trustful,  eloquent  men,  now  for- 
gotten, like  the  multitudes  who  gladly  heard  them. 
Not  Congress  alone ;  not  Presidents  and  courts  and 
Governors  and  Legislatures;  not  orators  like  Henry 
and  Ames,  Webster  and  Clay;  not  inventors  like 
Fulton  and  Goodyear  and  Morse  and  Singer;  not 
the  poets  and  the  historians  and  the  journalists — 
but  also  the  rural  preachers,  the  circuit-riders,  the 
faithful  priest,  the  voices  crying  in  the  wilderness — 
these  moulded  democracy  in  America.  All  these 
pass  before  us  as  we  go  back  to  the  days  of  small 
things,  the  gray  days  of  work  and  pioneering. 

At  the  middle  of  the  nineteenth  century  democ- 
racy in  America  was  encumbered  with  more  slaves 
than  the  entire  population  numbered  on  that 
April  day  when  Washington  became  President. 
Scattered  over  the  land  were  more  than  four  hun- 
dred and  thirty  thousand  *  free  persons  of  color, 
everywhere  unwelcome.  Slave  property  in  the 
border  States  was  becoming  insecure  and  the  black 
code  yearly  more  severe.  The  constitutions  and 
laws  of  the  Southern  States  were  graduall}''  mak- 
ing emancipation  impossible.  Few  Northern  peo- 
ple migrated  to  the  South  for  permanent  homes; 
fewer  Southern  people  sought  homes  in  the  North. 
The  Union  consisted  of  two  peoples,  separated  by 
a  compromise  boundary.    They  did  not  know  one 

*  434.495- 
354 


California  the  Ke^y stone  of  Power 

another  well.  Far  in  the  West  lay  one  State 
whose  composite  people  had  recently  made  a  con- 
stitution which  contained  both  Northern  and 
Southern  elements.  California  was  free  soil,  and 
the  men  who  made  its  constitution  and  laws  repre- 
sented by  birth  nearly  every  State  in  the  Union. 
Was  this  State,  that  broke  the  balance  of  power  in 
the  Union,  indicative  of  the  goal  to  which  democ- 
racy in  America  was  tending.?  Free  labor  had 
made  this  State  and  won  its  admission,  for  it 
would  not  compete  with  slavery  in  the  gold-mines. 


CHAPTER   XII 
A  PEOPLE  WITHOUT  A  COUNTRY 

Every  nation  in  history,  at  some  period  of  its 
career,  has  been  an  oppressor.  The  oppressed 
have  not  infrequently  been  as  numerous  as  the 
oppressors,  sometimes  more  numerous.  Usually 
the  relation  between  the  two  groups  is  that  of 
master  and  slave,  but  the  slave,  being  property,  is 
protected  by  the  law  of  things.*  As  a  human 
being  he  has  few  rights,  or  none.  As  property 
he  must  have  an  owner,  and  be  answerable,  as 
assets.  By  law  he  may  be  real  or  personal  prop- 
erty. Slave  codes,  in  whatever  nation,  guard  him 
as  long  as  he  is  productive  or  profitable,  but  their 
dominant  purpose  is  to  prevent  him  from  exercis- 
ing the  rights  of  man.  He  is  denied  every  right 
except  the  right  of  things.  He  must  be  owned, 
but  cannot  own ;  he  must  be  protected,  but  cannot 
protect  himself ;  he  must  support  the  State,  but 
cannot  participate  in  its  organization  or  control. 
He  must  be  known,  but  cannot  be  taught.  He 
has  no  rights ;  another  has  rights  in  him,  to  him, 
over  him.  Only  by  custom  can  a  slave  be  called 
he  or  she.     Property  is  impersonal. 

*  The  principal  authorities  for  this  chapter  are  the  colonial 
laws  and  ihc  laws  of  the  several  States  on  the  subject,  from  1800 
to  1850. 

356 


The  False  Tenets  of  Democracy 

But  man  makes  the  law  for  man ;  property  the 
law  for  property.  In  spite  of  the  law  of  things, 
slaves  have  always  tended  to  come  under  the 
law  of  persons.  The  affection  of  the  master,  or 
some  great  personal  or  public  service  done  by  the 
slave,  might  work  emancipation.  Or  a  person  of 
the  same  race  as  the  slave  might  not  be  a  slave  in 
another  country.  Thus  inheriting  a  man's  rights, 
his  descendants  would  be  freemen. 

Democracy  in  America,  during  the  first  century 
of  independence,  exhibited  the  anomaly  of  being 
slavocracy.  Its  excuse  was  the  common  one  of 
the  heir-at-law;  its  real  defence  was  the  lust  and 
the  enjoyment  of  riches  and  power.  In  some 
form  slavery  existed  in  every  colony,  though  it 
ceased  first  in  those  of  the  North,  and  chiefly  on 
account  of  the  climate.  Had  the  sunny,  semi- 
tropical  climate  of  Florida  and  South  Carolina  ex- 
tended over  New  England,  the  abolition  of  slavery 
would  have  been  advocated  farther  north.  Even 
our  morality  is  much  a  matter  of  latitude. 

Not  until  the  eighteenth  century  was  nearly 
past  did  the  people  of  New  England,*  New  York, 
Pennsylvania,  and  New  Jersey  arrive  at  the  con- 
clusion that  slavery  was  unprofitable.  Then  they 
provided  for  its  gradual  abolition.    Their  morality 

*  In  Rhode  Island,  negroes  born  after  1784  were  free;  in  Con- 
necticut, after  1797  —  slavery  abolished,  June  12,  1848.  Slavery 
was  abolished  by  the  constitution  of  Vermont,  1777 ;  of  Massa- 
chusetts, 1780;  of  New  Hampshire,  1783.  Gradual  abolition  was 
effected,  b}^  statute,  in  Pennsylvania,  1780;  New  York,  1799;  New 
Jersey,  1804.  In  New  York,  by  act  of  1817,  slavery  was  abolished 
after  July  4,  1827. 

357 


Const  it  ufioiial  History  of  tJje  American  People 

sustained  them  during  this  trial,  just  as  the  moral- 
ity of  people  in  States  farther  south  sustained 
them,  at  the  same  time,  in  making  their  slave 
codes  more  severe  and  their  laws  permitting 
emancipation  less  liberal. 

Until  the  adoption  of  the  national  Constitution 
the  slave  was  not  a  political  factor  in  American 
democracy.  The  "  federal  number,"  as  the  "  three- 
fifths  "  clause  was  called,  combined  economics  and 
politics.  Climate  forbade  African  slavery  in  the 
Northern  States,  and  it  there  ceased  to  be  an 
economical  before  it  became  a  political  element. 
Had  it  not  been  abolished  in  the  North  it  would 
hardly  have  gained  importance  as  a  federal  factor. 
Men  may  outwit  a  constitution  ;  they  cannot  re- 
sist climate.  In  the  year  when  the  Constitution 
went  into  operation  there  were  nearly  sixty  thou- 
sand free  persons  of  color  *  and  nearly  seven  hun- 
dred thousand!  slaves  in  the  country.  A  little 
more  than  one -twentieth  of  the  slaves  were  in 
Northern  States  ;|  about  three-fifths§  of  the  free 
persons  of  color  were  in  the  South,  and  of  these 
fully  three -fourths  were  in  Delaware,  Maryland, 
and  Virginia.  The  right  to  emancipate  a  slave 
was  incident  to  the  right  of  property,  but  the 
exercise  of  the  right  involved  questions  of  pub- 
lic policy.      Was   it  public  policy   to   encourage 

*  1790 — 59,527.  1 1790 — 697,681. 

\  New  Hampshire,  158;  Rhode  Island,  948;  Connecticut,  2764; 
Pennsylvania,  3737  ;  New  Jersey,  11,423;  New  York,  21,324. 

§  Kentucky,  114;  Tennessee,  361  ;  Georgia,  398;  South  Caro- 
lina, 1801  ;  Delaware,  3899;  North  Carolina,  4975;  Maryland, 
8043;  Virginia,  12,866. 

358 


Public  Opinion  in  Slave- Holding  States 

it?  Was  it  public  policy  to  restrict  it?  Could 
the  emancipator  be  allowed  to  endanger  other 
property  by  emancipating  his  own  ?  But  could 
he  not  emancipate  his  own  ?  He  could  sell  it,  ex- 
change it,  bequeath  it,  mortgage  it,  lend  it,  nourish 
it,  starve  it,  and  in  some  cases  put  it  to  death  and 
not  be  indictable  for  homicide. 

Obviously,  in  a  slave-holding  State  a  free  negro 
was  an  anomaly.  Public  policy  made  his  presence 
unlawful,  and  went  as  far  as  prudence  dare  to 
make  it  impossible.  The  question  of  emancipa- 
tion was  sure  to  come  to  the  front  whenever  a 
slave-holding  State  should  meet  in  convention  to 
make  a  new  constitution.  But  slight  record  re- 
mains of  the  debates  on  this  question  till  after 
1840,  although  as  the  half -century  closed  it  was 
exhaustively  discussed  in  Kentucky,  in  Maryland, 
and  in  Viroinia.  There  the  result  of  the  discus- 
sion  was  inevitable.  As  slave  property  in  a  border 
state  was  insecure,  public  policy  dictated  that 
everything  be  done  to  make  it  safer.  Should 
emancipation  be  permitted  ?  Should  the  Legis- 
lature be  forbidden  by  the  constitution  to  allow 
the  cessation  of  the  relation  of  master  and  slave  ? 
Yet  how  could  the  restriction  be  imposed  if  a 
slave  was  lawful  property  ?  May  a  man  not  do 
as  he  wills  with  his  own  ?  The  result  of  the 
struggle  was  a  compromise,  as  in  Virginia  in 
1850,*  which  forbade  the  Legislature  to  emanci- 
pate slaves,  but,  at  discretion,  it  could  impose  re- 

*  Constitution,  1850,  Art.  iv.,  Sees.  20,  21. 
359 


Constitutional  History  of  tlje  American  People 

strictions  on  the  power  of  slave-owners  to  do  so. 
Public  opinion  did  the  rest.  This  may  be  said 
to  have  been  the  attitude  of  slave-holding  States 
towards  the  question  of  emancipation  in  the  mid- 
dle of  the  century. 

Free  negroes,  at  the  opening  of  the  century,  were 
in  much  the  same  plight  all  over  the  country.  New 
Hampshire  excluded  them  from  the  militia  bylaw,* 
and  every  other  State,  either  by  law  or  by  the  con- 
stitution. Massachusetts  compelled  them  to  re- 
port for  militia  duty,  under  heavy  penalty,  but  as- 
signed them  to  menial  duties  about  the  officers' 
quarters.!  Occasionally  their  natural  love  of  music, 
and  their  capacity  to  produce  it,  found  them  a  more 
favored  service  as  drummers  or  trumpeters.  In 
1788I  Massachusetts  forbade  Africans  to  tarry  in 
the  State  longer  than  two  months,  under  penalty 
of  hard  labor.  Exception  was  made  for  the  citi- 
zens of  Morocco,  with  whose  Emperor  a  treaty  ex- 
isted, but  none  was  ever  known  to  immigrate  to 
Massachusetts  from  that  country.  When  the  nine- 
teenth century  began,  the  act  of  1703  was  still  in 
force  in  this  State,  requiring  the  emancipator  of  a 
slave  to  give  fifty  pounds  security  to  the  town  treas- 
urer, to  prevent  the  enfranchised  from  becoming  a 
public  charge.  In  other  States  the  amount  varied, 
but  the  general  character  of  this  law  remained. 

On  every  side  the  free  negro  encountered  de- 
grading restrictions.  His  certificate  of  emancipa- 
tion must  be  registered  and  his  own  copy  be  signed 

*  Act  of  December  28,  1792.  t  Laws  of  1699,  p.  309. 

X  March  26th. 

360 


The  Penalties  of  Emancipation 

by  two  justices  of  the  peace.*  Without  the  copy- 
he  could  not  remain  in  the  county,  nor  travel  out  of 
it,  under  penalty  of  fine,  imprisonment,  or,  often, 
of  being  claimed  or  sold  as  a  slave.t  Registration 
of  the  certificate  was,  however,  seldom  required,  for 
obvious  reasons.  The  free  negro,  like  the  slave, 
was  rarely  able  to  read  or  write,  and  as  his  habits 
were  not  those  of  an  intelligent  white,  he  was  not 
accustomed  to  the  care  of  papers.  His  certificate 
was  easily  lost,  or  stolen  and  destroyed.  Unable, 
then,  to  prove  his  emancipation,  he  was  forced  back 
into  slavery.  If  his  case  reached  a  court  of  jus- 
tice, he  could  not  be  a  witness,  for  no  negro  or  mu- 
latto, free  or  slave,  could  give  evidence  in  a  case 
in  which  a  white  man  was  a  party.|  Thus  it  fol- 
lowed that  all  over  the  country  free  negroes  were 
constantly  being  seized  as  slaves. 

Their  migration  early  became  the  subject  of 
cruel  laws.  If  emancipated,  they  must  leave  the 
State  within  a  prescribed  time,  usually  not  over 
three  months.  But  whither  could  they  go  ?  Every 
man's  hand  was  against  them.  If  they  went  to 
another  State,  they  would  be  arrested,  examined, 
fined,  imprisoned.  On  discharge,  if  caught  within 
thirty  days,  they  would  be  condemned  to  hard 
labor  for  life,  or  to  be  sold  as  slaves.§     Every  State, 

*  New  Jerse}',  act  of  1838.  Ohio,  acts  of  January  5,  1804,  and 
February  27,  1834.     Illinois,  act  of  March  30,  1819. 

t  New  Jersey,  acts  of  1838,  Elmer's  Digest ;  Georgia,  December 
26,  1835;  Louisiana,  March  16,  1842. 

X  Acts  of  Ohio,  January  25,  1807;  Indiana,  January  28,  i8i8; 
Maryland,  December  31,  1801. 

S  Kentucky,  acts  of  February  14,  1846;  March  24,  1851. 

361 


Constitutional  History  of  tJjc  American  People 

slave  or  free,  objected  to  their  coming.*  If  near 
slaves,  the  free  negro  might  excite  an  insurrection  ; 
if  among  whites,  it  was  said  he  was  sure  to  become 
a  vagrant  and  a  criminal.  Did  not  the  reports  of 
prisons  and  penitentiaries  prove  that  more  crimes 
were  committed  by  negroes  than  by  whites,  in  pro- 
portion to  the  numbers  of  the  two  races  ?  Possibly, 
was  the  reply;  but  the  negro  is  not  wholly  to  blame. 
What  can  be  expected  of  a  people  whom  it  is  a 
penal  offence  to  teach  even  to  read  ?  Throughout 
the  broad  land  were  tens  of  thousands  of  school- 
houses,  yet  no  negro  dare  enter  one,  nor  would 
any  school  dare  to  admit  him,  unless  it  be  one 
kept  by  some  fanatical  Abolitionist.  Very  proper, 
all  this ;  for  the  free  negro  for  ages  has  proved  his 
incapacity  to  learn.  Point  to  one  negro,  in  all  his- 
tory, who  was  a  scholar  or  an  artist,  a  painter  or 
a  poet.  God  intended  him  to  serve  others,  and 
gave  him  a  black  skin  to  mark  him  and  his  de- 
scendants forever  as  the  inferior  race.     Therefore, 


*  See  acts  of  the  following  Legislatures  concerning  this  sub- 
ject: Ohio,  act  of  January  25,  1807;  excluded  from  the  census 
by  act  of  January  28,  1817.  Illinois,  act  of  March  30,  1819.  The 
act  of  Delaware,  January  25,  181 1,  forbade  them  to  enter  the 
State,  subject  to  a  fine  of  ten  dollars  a  week  for  remaining, 
or  to  be  imprisoned  and  sold.  Acts  of  February  16,  1849,  and 
March  5,  1851.  Acts  of  Maryland,  1806;  March  14,  1832;  De- 
cember, 1829.  Acts  of  South  Carolina,  December  20,  1800;  De- 
cember 20,  1825;  December  19,  1835;  December  18.  1844.  Acts 
of  Kentucky,  February  23,  1808;  February  24,  1846;  made  a 
felony  by  act  of  March  24,  1851.  Acts  of  Tennessee,  December 
16,  1831  ;  December  21,  1851.  Mississippi,  acts  of  June  18,  1822  ; 
December  20,  1831  ;  February  26,  1842.  Arkansas,  act  of  Jan- 
uary 20, 1843.  The  qualifying  act  of  Missouri,  of  January  7,  1825, 
and  the  excluding  act  of  February  i6,  1846. 

362 


Increase  of  Free  Negroes 

let  the  free  negro — the  worst  of  all  negroes — go 
elsewhere ;  forbid  his  coming  into  this  State,  and, 
if  he  persists  in  coming,  make  an  example  of  him. 

It  is  rather  curious  that  debates  of  this  kind 
were  heard  oftener  and  at  greater  length  in  the  free 
States — as  in  New  York,  in  182 1,  when  the  consti- 
tutional convention  was  discussinor  whether  to  limit 
the  suffrage  to  white  men;  in  1838,  in  Pennsyl- 
vania; again  in  New  York  in  1846;  in  Iowa  in 
the  same  year;  in  Illinois  and  Wisconsin  in  1848; 
and  in  Ohio  in  1850.  No  Southern  Legislature  or 
convention  before  1868  ever  debated  the  extension 
of  the  suffrage  to  the  negro,  save  Tennessee  in 
1834  and  North  Carolina  in  1835,  which  discussed 
the  abrogation  of  his  right  to  vote  under  their 
first  constitutions.  It  was  bad  enough  to  suffer  an 
occasional  case  of  emancipation.  To  a  Southerner 
living  before  the  war  negro  suffrage  was  fanaticism. 

Yet  the  number  of  free  negroes  increased,  and, 
strange  to  say,  quite  regularly.  For  every  one  in 
the  country  in  1790  (59,527)*  there  were  two  in 
1800  (108,435),  three  in  1810  (186,446),  four  in 
1820  (233,634),  five  in  1830  (319,599),  six  in  1840 
(386,293),  and  seven  in  1850  (434,495).  This  was 
a  greater  rate  of  increase  than  that  of  the  white 
population,  which,  on  the  basis  of  the  number  in 
1790  (3,172,006),  was  one  and  one-third  in  1800 
(4,306,446),  one  and  two-thirds  in  18 10  (5,862,063), 
two  and  one -third  in  1820  (7,862,166),  three  and 
one-third  in  1830  (10,537,378),  four  and  one-third 

*  These  figures  are  taken  from  table  i.,  ninth  census,  1790- 
1870,  pp.  4-6. 


Const H lit ional  History  of  the  American  People 

in  1840  (14,195,805),  and  nearly  six  and  one-third 
in  1850  (19,553,068).  It  was  a  higher  rate  also 
than  that  of  the  slave,  which,  as  compared  with 
the  number  in  1790  (697,681),  increased  one  and 
one -third  by  1800  (893,602),  One  and  five-sixths 
by  1810  (1,191,362),  two  and  one -half  by  1820 
(1,538,022),  three  and  one -third  by  1830  (2,009,- 
043),  three  and  five- ninths  by  1840  (2,487,355), 
and  four  and  five-eighths  by  1850  (3,204,313). 

Yet.  with  the  increase  of  free  ne2:roes  the  laws 
and  public  sentiment  against  them  became  more 
and  more  hostile.  Emancipation  in  some  States 
was  regulated,  practically,  by  a  jury,  and  in  nearly 
all  was  limited  to  persons  in  middle  life  who  were 
fully  capable  of  taking  care  of  themselves.*  Vir- 
ginia, in  1836,  appropriated  eighteen  thousand 
dollars  to  remove  them  from  the  State.!  Various 
schemes  were  proposed  to  secure  a  place  of  de- 
posit. Colonization  in  Liberia  and  Africa  was  the 
favorite,  but  the  free  negro  showed  slight  desire  to 
be  returned  to  the  Dark  Continent.^  From  first 
to  last  African  colonization  was  a  failure.  Might 
not  the  Pacific  coast  offer  a  retreat  .?§     It  was  too 

^'^  Acts  of  Louisiana,  January  31,  1827;  Civil  Code,  Art.  185. 
North  Carolina,  act  of  1837  (Iredell  and  Battles'  Revised  Statutes, 
p.  585).  Forbidden  by  South  Carolina,  act  of  December  17,  1841. 
Tennessee,  acts  of  November  13,  1801  ;  February  5,  1842. 

t  Act  of  March  23d. 

X  Tennessee,  act  of  November  26,  1833,  authorized  the  State 
treasurer  to  pay  ten  dollars  for  each  negro  who  was  removed  to 
Africa  by  the  Colonization  Society.  The  joint  resolution  of  the 
New  Jersey  Legislature,  December  30,  1824,  favoring  colonization 
is  typical  of  the  attitude  of  the  States  towards  free  negroes. 

§  Act  of  Virginia,  December  23,  1816. 

364 


Ostracism  of  the  Free  Negro 

far  away  to  be  neighbor  to  any  of  the  States ;  yet 
it  belonged  to  them.  Why  not  remove  the  free 
black  to  the  Oregon  countr}^?  Like  other  im- 
practicable schemes,  this  failed,  and  the  States 
were  left  free  to  dragoon  the  unfortunates  into 
miorratinp' — somewhere. 

The  result  was  the  steady  drift  of  this  human 
flotsam  and  jetsam  into  the  free  States,  and  special- 
ly those  along  the  border.  From  the  Delaware  to 
the  Mississippi  the  outcry  against  negro  invasion 
was  heard  for  twenty  years.  So,  too,  in  Louisi- 
ana, when,  towards  the  close  of  the  civil  war,  it  was 
proposed  to  put  the  right  to  vote  within  reach  of 
those  negroes  who,  in  the  opinion  of  the  Legislat- 
ure, might  with  safety  to  the  State  be  intrusted 
with  it  on  account  of  military  service,  the  payment 
of  taxes,  or  intellectual  fitness.* 

Every  slave-holding  community  from  the  dawn 
of  history  has  lived  in  constant  fear  of  a  servile 
insurrection.  The  Spartans  solved  the  problem 
by  a  periodical  slaughter  of  their  slaves.  The  Ro- 
mans attempted  to  solve  it  by  making  the  slave- 
owners individually  responsible  for  the  safety  of 
the  State,  and  to  this  end  the  master's  will  was 
made  law.  Between  him  and  his  slave  the  dis- 
tance was  measured  by  no  human  tribunal. 

American  democracy  was  no  exception.  Its 
Southern  portion  lived  in  fear  of  an  uprising. 
Against  this  every  provision  of  the  black  code  was 
aimed.   In  substance  the  plan  was  simple  enough — 

*  Constitution  of  1864,  Title  iii.,  Art.  15. 
365 


Constitutional  History  of  the  American  People 

to  keep  the  slave  an  animal  and  to  deprive  him  of 
all  means  of  self-defence.  It  became  necessary  to 
include  the  free  negro  in  that  plan.  He,  too,  was 
forbidden  to  carry  arms  without  the  consent  of  a 
number  of  slave-holders.*  To  teach  him  was  an 
offence  punishable  by  heavy  fiines.t  Free  negroes 
could  not  assemble  for  any  purpose  between  sun- 
set and  sunrise,  nor  at  other  times  for  religious 
purposes  unless  in  the  presence  of  at  least  five 
slave-holders. I  The  preacher  must  not  sow  sedi- 
tion. In  brief,  free  negroes  were  put  under  the 
same  police  regulations  as  slaves. § 

In  many  respects  they  were  worse  off,  because 
the  slave  was  property,  and  enjoyed  the  stern  pro- 
tection that  property  always  receives.  The  free 
negro  could  neither  protect  himself  nor,  in  many 
cases,  find  protection  in  the  law.  Persecution 
drove  many  to  select  a  master  and  live  as  slaves 
— who,  at  least,  had  food,  clothing,  a  cabin,  and  a 
protector.  The  ceaseless  persecution  of  an  ex- 
quisite system  concentrated  its  torments  upon  this 
people  without  a  country.  They  could  not  buy 
from  a  slave  nor  sell  to  one,  nor  be  found  in  slave 
quarters.il     No  slave  or  free  negro  could  lawfully 

*  The  Delaware  act  of  1806  forbade  him  to  keep  a  dog  or  a 
gun;  that  of  February  10,  1832,  forbade  him  fire-arms;  North 
Carolina,  act  of  January  ir,  1841. 

+  Missouri,  act  of  February  16,  1846;  Virginia,  act  of  April  7, 
1831  ;  if  leaving  the  State  to  be  educated,  they  were  not  permit- 
ted to  return,  by  act  of  April  7,  1838. 

\  Virginia,  act  of  March  15,  1832  ;  South  Carolina,  act  of  De- 
cember 20,  1800.  §  Georgia,  act  of  December  7,  1807. 

II  North  Carolina,  acts  of  January  i,  8,  9,  1845  :  Georgia,  act  of 
December  21,  1839;  Alabama,  act  of  January  16,  1832. 

2,66 


The  Pitiable  Plight  of  the  Free  Negro 

administer  medicine.*  If  a  free  negro  sought  to 
learn  a  trade,  no  one  dare  teach  him.  If  a  person 
hired  one  as  a  mason  or  a  carpenter,  the  penalty 
was  a  fine  of  two  hundred  dollars.! 

There  remained  but  one  avenue  of  escape,  and 
this  led  out  into  the  wilderness.  On  a  piece  of 
abandoned  land  the  free  negro  built  his  wretched 
hut,  a  strange,  pitiful  combination  of  savagery 
and  civilization.  How  he  existed  he  alone  knew. 
Whether  in  the  North  or  in  the  South,  he  dwelt 
apart  from  men,  like  the  leper  in  Israel.  Every 
offence  committed  in  the  region  was  attributed  to 
him.  If  he  raised  a  crop,  the  owner  of  the  land 
compelled  him  to  move  on.  If  his  chicken-yard 
prospered,  his  increase  was  at  once  attributed  to 
the  robbing  of  some  white  man's  roost.  Nothing 
good  was  credited  to  him.  His  children  grew  up 
wild.  No  teacher  dare  show  them  a  book  or  teach 
them  a  letter.  As  they  straightened  their  bandy- 
legs  and  shot  up  from  infancy,  they  fished  and 
stole  and  became  the  scavengers  of  the  district.  A 
selfish  or  pitying  soul  might  take  them  to  service, 
but  with  the  almost  inevitable  result  of  finding  them 
utterly  untrustworthy,  worse  than  slaves,  and  fit 
only  for  the  whipping-post.  Often  they  married 
slaves,  and  thus  drifted  back  to  the  condition  of 
their  ancestors  and  stamped  it  upon  their  pos- 
terity. 

Towards  the   close   of  the   half  -  century,  many 

*  Virginia,  act  of  January  28,  1843. 

t  Georgia,  act  of  December  27,  1845  ;  Alabama,  act  of  January 
16,  1832. 

367 


Constitutional  History  of  the  American  People 

free  negroes  were  in  service  on  the  sailing-vessels 
and  steamers  plying  in  the  Atlantic  coast -trade 
and  down  the  Ohio  and  Mississippi.  Their  con- 
dition was  far  better  than  that  of  most  of  their 
race.  But  as  soon  as  the  vessel  came  into  a  South- 
ern port  the  process  of  persecution  began.  Black 
freemen  ran  the  vessel  and  brought  it  to  the  dock. 
There,  black  slaves,  often  under  the  whip,  handled 
the  cargo.  The  contrast  did  not  require  much 
education  in  the  slave  to  brinsf  his  mind  to  a 
conclusion.  A  servile  insurrection  quickly  over- 
whelmed his  neglected  soul.  Escape,  be  free,  be 
a  man,  be  clothed,  be  fed,  be  paid,  and  be  like 
those  of  his  race  before  his  eyes !  He  could  not 
withstand  the  temptation.  He  planned  escape. 
A  free  negro  was  ever  at  hand  as  a  confederate. 
The  slave  was  secreted  on  board.  He  often  came 
North  concealed  in  a  bale  of  cotton,  or  even 
nailed  in  a  box.  Helpless,  half  dead  with  fear,  he 
had  been  tumbled  into  the  hold.  But  the  long 
voyage  was  towards  the  north  star.  What  agonies 
he  endured  of  hunger,  cold,  and  thirst,  or  the  more 
fearful  fate  of  being  stood  on  his  head  in  the 
accident  of  stowing  away  the  cargo ! 

Few  escaped,  but  hundreds  wanted  to ;  there- 
fore the  laws  respecting  free  negroes  on  vessels 
were  increased  in  severity.  Florida,  in  1849,*  for- 
bade vessels  having  free  negro  crews  to  anchor 
nearer  than  five  miles  to  the  city  of  Appalachicola.t 
Seven  years  before  Louisiana  had  forbidden  free 

*  January  13th. 

t  South  Carolina,  act  of  December  20,  1825. 

368 


Conflicting  Interpretations  of  the  Law 

negroes  to  come  in  on  any  boat*  If  found  on 
shore,  they  were  at  once  to  be  put  in  jail  till  the 
boat  left  port.  On  the  arrival  of  a  vessel  with  a 
crew  of  free  negroes,  the  harbor -master  informed 
some  justice  of  the  peace,  who  was  alert  to  have 
proper  warrants  ready. t  If  one  of  the  free  negroes 
returned,  he  was  liable  to  imprisonment  for  five 
years.  Thirty  days  after  his  discharge,  if  found 
in  the  State,  he  would  be  imprisoned  at  hard  labor 
for  life.  A  fine  of  a  thousand  dollars  was  imposed 
on  the  person  who  carried  a  slave  to  a  free  State. 
As  negroes  look  much  alike,  a  free  negro  might 
easily  be  claimed  as  a  slave.  The  North  accused 
the  South  of  selling  free  negroes  into  slavery 
under  pretence  that  they  were  runaway  slaves. 
The  South  accused  the  North  of  carrying  away 
slaves  as  free  negroes.  Complaints  by  individuals 
easily  became  the  ground  of  general  accusations. 
Truth,  and  also  violations  of  law,  existed  on  both 
sides.  As  soon  as  the  sacred  realm  of  law  was 
invaded.  Governors  and  legislators  roused  up,  not 
so  much  to  repel  the  invaders  as  to  defy  one  an- 
other. The  Governors  of  several  Northern  States 
refused  to  deliver  up  certain  runaway  slaves  as 
fugitives  from  justice.  The  Governors  of  several 
Southern  States  refused  to  deliver  up  certain  free 
negroes  who  had  been  seized  as  slaves.  Long 
and  learned  were  the  references  to  precedents — 
legislative,  constitutional,  historical,  and  judicial. 
Longer,  and  no  less  learned,  were  the  resolutions 

*  Act  of  March  i6th. 
t  Louisiana,  act  of  March  i6,  1842. 
I. — AA  369 


Co/isf/fiif/oiLil  History  of  the  American  People 

passed  by  contending  Legislatures,  and  all  with 
one,  and  only  one,  result — each  party  was  the  more 
convinced  that  he  was  right.  Legislation  recrimi- 
native in  character  followed.  In  the  North  it  was 
popularly  called  the  personal  liberty  bills  ;*  in  the 
South  it  was  entitled  acts  for  the  further  protec- 
tion of  slave  property,  and  for  other  purposes. 
The  legislative  contest  began  about  1835  and  in- 
creased in  vehemence  til)  the  end  came — thirty 
years  later.! 

The  case  of  the  slave  "  Isaac,"  the  property  of 
one  Colley,  a  citizen  of  Virginia,  renewed  the  con- 
test.ij:  He  had  been  conveyed  to  New  York  in  a 
vessel  that  ran  regularly  between  the  two  States. 
Governor  Seward  refused  to  return  him  as  a  fugi- 
tive from  justice,  on  the  ground  that,  as  slavery 
was  contrary  to  the  law  of  nations,  the  State  of 
New  York  was  under  no  obligation  to  deliver  him 
up  to  the  State  of  Virginia.  Virginia  replied  that 
the  case  did  not  arise  under  the  law  of  nations, 
but  under  a  provision  of  the  Constitution  of  the 
United  States.  Nor  was  it  an  ordinary  provision, 
but  one  resulting  from  a  compromise  on  the  mak- 
ing and  support  of  which  the  existence  of  the 
Union  depended. 

It  was  not  long  before  other  slave-holding  States 

*  New  York,  May  i8,  1840;  see  Virginia,  act  of  March  18, 
1 841,  passed  as  a  rejoinder ;  also,  act  of  March  27,  1843. 

t  See  Louisiana  resolutions  of  March  16,  1842;  Georgia  res- 
olutions (in  reply  to  the  Massachusetts  General  Court),  Decem- 
ber 28,  1842  ;  also  of  December  25,  1843. 

X  See  Virginia  resolutions  in  ?-e,  March  17,  1840  ;  also,  the  res- 
olutions of  the  New  York  Assembly  in  re,  April  1 1,  1842. 

370 


The  Free  Newo  Admitted  to  the  Franchise 


'-fe 


fell  into  line  with  Virginia.  Resolution  after  reso- 
lution appeared,  and  threats  of  disunion  were  freely 
and  formally  made. 

The  Missouri  Compromise  was  effected  at  last 
when  that  State,  by  a  solemn  public  act,  promised 
not  to  exclude  free  negroes  and  mulattoes  who 
were  citizens  of  any  State.  In  the  year  of  this 
promise,  1821,  New  York  revised  her  constitution 
and  extended  to  free  negroes  the  right  to  vote.* 
This  provision  was  in  substance  like  the  act  of  181 5 
respecting  such  persons.  Having  proved  to  the 
Mayor  that  he  was  a  freeman  and  a  freeholder 
having  real  estate  worth  twenty  pounds,  or  that  he 
was  a  tenant  paying  a  rent  of  forty  shillings  an- 
nually, and  also  paying  a  State  tax,  the  free  negro 
in  New  York  City,  in  181 5,  was  entitled  to  receive 
a  certificate  from  the  Recorder,  which  entitled  him 
to  vote.  The  constitution  of  182 1  increased  the 
property  qualification  to  two  hundred  and  fifty  dol- 
lars, and  required  him  to  reside  in  the  State  two 
years  longer  than  a  white  man,  but  it  opened  the 
right  of  suffrage  to  him.  This  provision  by  New 
York  proved  in  time  to  be  of  far  greater  impor- 
tance than  the  Missouri  Compromise.  It  forced  the 
issue  on  which  the  Union  depended.  It  was  the 
right  of  New  York,  as  of  every  State,  to  prescribe 
qualifications  for  its  citizens.  In  1846  the  State 
repeated  the  provision  in  its  third  constitution.  It 
stood  alone  among  the  States.   Massachusetts,  New 

*  The  first  discussion  of  the  extension  of  the  suffrage  to  ne- 
groes occurred  in  the  New  York  convention  of  1821.  The  chief 
advocate  of  the  innovation  was  Rufus  King. 

371 


Constitutional  History  of  tJjc  American  People 

Hampshire,  and  Vermont  allowed  the  free  negro 
to  vote,  with  a  more  liberal  suffrage  qualification. 
Elsewhere  in  the  Union  the  right  to  vote  was 
denied  him.  How  was  this  condition  of  affairs  to 
be  harmonized  with  the  national  Constitution, 
which  provides  that  "  the  citizens  of  each  State 
shall  be  entitled  to  all  privileges  and  immunities  of 
citizens  in  the  several  States  " }  Or  with  the  pro- 
vision requiring  the  delivery  of  persons  held  to 
service  in  one  State  escaping  into  another.  As  a 
negro  slave  did  not  differ  in  appearance  from  a 
negro  freeman,  and  as  these  were  increasing  in 
number  at  the  rate  of  two  a  day,  and  as  most  of 
them,  like  ancient  Gaul,  looked  to  the  North — 
whither  also  a  stream  of  fugitive  slaves  was  stead- 
ily flowing — it  was  impossible,  under  the  laws,  the 
constitutions,  and  the  public  sentiment  of  the  time, 
to  discriminate  always  between  freeman  and  slave. 
The  commonwealths  were,  therefore,  in  confusion 
over  the  question  of  citizenship. 

But  Northern  sympathy,  such  as  it  was,  reached 
out  only  to  the  fugitive  slave.  The  free  negro  was 
as  unwelcome  North  as  South.*  He  lived  on  the 
outskirts  of  towns  and  villages  —  the  American 
Ishmaelite.  Every  man's  hand  was  against  him. 
Schools  existed,  but  not  for  him  or  his  children. 
Men  who  were  conductors  on  the  underground 
railroad,  or  who  kept  its  way-stations,  were  not  al- 

*  Northern  sentiment  on  the  subject  was  typically  set  forth  in 
the  Pennsylvania  constitutional  convention  of  1837.  It  runs 
throuti;h  the  thirteen  octavo  volumes  in  which  the  debates  of  this 
convention  are  preserved. 

372 


Persecution  for  Justice    Sake 

ways  anxious  to  have  negro  children  attending  the 
same  schools  with  their  own.  Moreover,  most  of 
these  schools  were  pay  schools,  for  the  free  public- 
school  system  was  not  inaugurated  until  about 
1842,  and  was  then  planned  solely  for  white  chil- 
dren. 

Nor  did  hostility  cease  with  the  exclusion  of 
negroes  from  the  rate  schools  and  public  schools ; 
it  was  equally  fierce  at  the  prospect  of  schools  for 
negroes  only.  Reference  need  only  be  made  to 
the  indignities  heaped  upon  Prudence  Crandall,  a 
member  of  the  Society  of  Friends,  who,  in  1832, 
established  a  school  for  young  women  in  Canter- 
bury, Connecticut.  She  admitted  one  colored  girl, 
and  the  phials  of  public  wrath  were  at  once  emptied 
on  her  head.  In  town-meeting,  her  school  was  de- 
clared a  public  nuisance,  for  she  announced  that 
colored  girls  might  attend.  She  was  insulted,  slan- 
dered, and  persecuted  in  ways  that  only  Yankee 
genius  could  devise.  Her  house  was  frequently 
assaulted,  her  well  was  filled  with  filth.  She  was 
boycotted  by  the  neighborhood.  And  who  were 
her  neighbors  ?  Lawyers,  doctors,  farmers,  me- 
chanics, clergymen,  and  the  United  States  district 
judge.  What  horror  filled  these  good  people  at 
thought  of  a  negro  school  right  at  their  doors ! 
She  was  denied  a  hearing  at  town-meeting ;  nor 
were  her  friends,  among  whom  were  Arthur  Tap- 
pan  and  Rev.  Samuel  J.  May,  permitted  to  speak 
in  her  behalf.  In  spite  of  concerted  opposition 
and  persecution,  she  opened  her  school  with  about 
twenty  pupils.    Then  local  wrath  took  the  form  of 

373 


Constitutional  History  of  the  American  People 

law.  One  of  her  neighbors  carried  an  act  through 
the  Legislature  making  it  a  penal  offence  to  estab- 
lish a  school  for  the  instruction  of  colored  persons 
not  inhabitants  of  Connecticut,  or  to  harbor  or 
board  any  such  persons,  without  the  written  con- 
sent of  the  select-men  of  the  town.*  When  news 
of  its  passage  reached  Canterbury,  bells  were  rung 
for  joy  and  cannon  fired. 

On  the  27th  of  June,  Miss  Crandall  was  ar- 
rested and  bound  over  to  appear  at  the  Au- 
gust term  of  court.  Would  Connecticut  send  a 
woman  to  jail  for  daring  to  teach  a  negro  girl  to 
read  }  She  was  placed  in  a  cell  just  vacated  by 
a  murderer.  Here  she  spent  one  night  In  the 
morning  bond  was  given,  and  she  was  free.  Her 
imprisonment  wrote  the  infamous  law  on  the  pub- 
lic conscience — if  such  thing  there  be — and  soon 
was  verified  the  truth  of  a  later  and  now  famous 
saying,  "  The  best  way  to  get  rid  of  a  bad  law  is  to 
execute  it."  She  was  tried,  and  the  jury  brought 
in  a  verdict  asfainst  her.  But  this  was  not  the 
end.  She  again  attempted  to  resume  her  work, 
but  persecutions  redoubled.  One  midnight  her 
house  was  attacked  by  a  mob  and  left  a  ruin. 
Then,  and  not  till  then,  did  she  abandon  her  work 
— the  benevolent  undertaking  of  teaching  a  few 
negro  girls  the  elements  of  knowledge,  that  they 
might  teach  free  negroes.! 

*  Act  of  1833,  in  Connecticut  Public  Statutes,  1835,  Title  53, 
p.  321. 

+  Wilson's  Rise  and  Fall  of  the  Slave  Power  in  America.  Vol.  i., 
P-  237. 

374 


Discrimination  Against  the  Free  Negro 

The  attitude  of  the  North  towards  free  people 
of  color  became  more  and  more  favorable,  however, 
as  the  designs  of  slavocracy  to  extend  its  power 
over  Texas  and  California  were  disclosed.  Re- 
monstrance against  slavery  extension  began  in 
1820,  when  Missouri  sought  admission,  and  was 
renewed  when  the  question  of  the  reannexation 
of  Texas  was  proposed — the  time  of  Miss  Crandall's 
persecution  in  Connecticut.  From  about  this  time 
slave  laws  became  more  severe  in  the  South,  but 
the  treatment  of  the  free  negro  in  the  North  be- 
came more  humane.  The  changes  are  illustrated 
by  the  laws  of  Ohio.  In  1804  a  free  negro  was  re- 
quired to  record  his  certificate  of  emancipation  in 
the  office  of  the  county  clerk.  No  man  could  hire 
one  unrecorded.  In  1807  ^^e  law  forbade  any  ne- 
gro to  settle  in  the  State  without  giving  bond  for 
five  hundred  dollars  to  the  county  clerk.  A  free 
negro  could  not  give  testimony  when  one  party 
was  white.  By  the  act  of  1829  negroes  were 
specially  prohibited  from  attending  free  white 
schools  in  Cincinnati.  Taxes  paid  by  negroes 
were  to  be  expended,  at  the  discretion  of  the 
school  trustees,  for  the  education  of  black  chil- 
dren, but  they  were  not  taxed  for  the  support  of 
the  schools  for  whites.  At  this  time  a  black  man 
could  not  gain  a  legal  settlement  in  the  State. 
Ten  years  passed,  and  an  elaborate  fugitive-slave 
law  was  enacted,  "to  secure  the  protection  pledged 
by  the  Constitution  to  the  South."  It  was  on  the 
statute-books  only  four  years  and  then  repealed. 
Ohio  was  becoming  slightly  antislavery.    Its  Legis- 

375 


Constitutional  History  of  the  Atnerican  People 

lature  sent  forth  a  joint  resolution  in  1S47  favor- 
ing the  exclusion  of  slavery  from  Oregon,  and  one 
in  the  next  year  demanding  its  exclusion  from 
whatever  territory  might  be  acquired  from  Mexico. 
It  claimed  that  Congress  had  power  to  do  this. 
In  1849*  the  Legislature  sent  forth  a  truly  peni- 
tent resolution.  As  free  persons  of  color  had  long 
been  degraded  and  oppressed,  Congress  ought  to 
give  each  of  them  eighty  acres  of  land  in  some 
part  of  Mexico,  set  apart  for  these  people  without 
a  country.  On  the  next  day  the  Legislature  de- 
clared that  Congress  ought  to  abolish  the  slave- 
trade  in  the  District  of  Columbia. 

That  this  repentance  was  genuine  was  proved, 
now,  by  the  establishment  of  separate  free  schools 
for  them,  by  the  repeal  of  several  discriminating 
acts,t  and,  further,  by  the  passage  of  a  law  provid- 
ing, mirabile  dictu,  that  when  fewer  than  twenty 
black  children  resided  in  the  school -district  they 
might  attend  the  white  school,  unless  objection  in 
writing  should  be  made  by  a  patron  of  the  school 
or  by  a  voter  in  the  district.^ 

About  this  time  the  people  of  the  State  decided 
to  call  a  convention  to  revise  the  constitution  of 
1803.  It  was  a  liberal-minded  body  of  men  in 
many  ways,  and  its  handiwork,  completed  in 
March,  185 1,  continues  to  be  the  supreme  law  of 
the  State ;  but  it  limited  the  suffrage  to  white  men. 

*  March  23d. 

t  February  10,  1849,  repeal  of  acts  of  1804,  1807,  1834.  except 
the  act  excluding  negroes  from  service  on  juries. 
t  See  also  the  act  of  February  24,  1848. 

376 


California  and  the  Free  Negro 

To  extend  it  to  free  negroes,  as  some  proposed, 
was  thouo'ht  both  danorerous  and  deciradine.  It 
would  convert  Ohio  into  an  asylum  for  free  blacks 
and  runaway  slaves.  But,  while  the  convention 
was  in  session,  an  incident  occurred  which  sud- 
denly sharpened  public  sentiment.  On  the  6th 
of  June,  1850,  seven  children  and  one  grandchild 
of  a  free  negro  woman,  named  Peyton,  were  ab- 
ducted into  Kentucky.  Nine  months  later  the 
Legislature  instructed  the  Governor,  Reuben 
Wood,  to  inquire  into  the  crime  and  restore  the 
children  at  the  expense  of  the  State. 

As  the  admission  of  California  grew  into  a  na- 
tional question,  the  State  Legislatures  divided — the 
Northern,  like  Wisconsin,  demanding  the  extension 
of  the  Ordinance  of  1787  over  it;  the  Southern, 
like  Alabama,  declaring  that  the  State  would  make 
common  cause  with  other  slave-holding  common- 
wealths for  the  defence  of  the  institution  of  slavery, 
because  Congress  had  no  power  whatever  over  it.* 
Though  California  came  in  as  free  soil,  its  consti- 
tution excluded  free  persons  of  color  from  the 
franchise  and  barely  missed  containing  an  article 

*  Resolutions  favoring  the  admission  of  California  and  the 
limitation  of  slavery  were  passed  by  the  Legislatures  of — Maine, 
July  27,  1849;  New  Hampshire,  January  4,  1849,  July  10,  1846; 
New  York,  December  7,  1847,  January  13,  1848,  January  4,  1849; 
Ohio,  February  25,  1848;  Michigan,  January  13,  1849,  February 
23,  1850;  Wisconsin,  February  8,  1849,  June  21,  1848.  Counter- 
resolutions  were  passed  by  the  Legislatures  of — Virginia,  January 
20,  1849;  South  Carolina,  December  20,  1850;  Georgia,  February 
8,  1850;  Florida,  January  13,  1849;  Texas,  February  11,  1850; 
Alabama,  March  6,  1848  ;  Mississippi,  March  5,  1850  (the  most 
elaborate  report  on  the  subject  by  a  Southern  Legislature). 

377 


Constitutional  History  of  tbc  American  People 

wholly  excluding  them  from  the  State.  Confident 
that  public  sentiment  would  regulate  the  matter, 
and  that  no  free  negro  would  travel  so  far,  the 
proposition  was  allowed  to  fall  through.  The 
attitude  of  California  towards  the  free  negro,  in 
1850,  was  typical  of  the  attitude  of  the  North.  As 
slavery  was  forbidden  there,  the  free  negro  was 
not  a  subject  for  legislation.  A  few  soon  found 
their  way  into  the  new  State,  chiefly  as  stewards 
on  the  Pacific  passenger  -  ships  and  steamers. 
Gradually  they  established  themselves  on  shore 
as  servants,  barbers,  and  occasionally  as  valets, 
but  they  did  not  venture  into  the  mining -camps. 
Their  appearance  there  would  have  started  a  white 
insurrection. 

The  story  of  the  struggles  of  the  free  negro  is 
a  painful  one,  yet  he  steadily  gained  ground  dur- 
ing this  half- century.  This  class  multiplied  so 
rapidly  in  Maryland  that  its  presence  —  some 
seventy-five  thousand  —  in  the  State  became  a 
most  vexatious  problem.  The  number  of  free 
neo'roes  fell  short  of  the  number  of  slaves  in 
the  State  only  by  fifteen  thousand,  and  the  two 
parts  of  the  black  population  were  within  ten 
years  of  equality  in  numbers.  The  constitutional 
convention  of  1850  was  called,  largely  to  solve  the 
problem.  It  made  no  provision  on  the  subject 
other  than  to  forbid  the  Legislature  to  abolish  the 
relation  of  master  and  slave.  An  effort  was  made, 
though  unsuccessful,  to  incorporate  a  clause  like 
that  in  the  Virginia  constitution  of  the  same  year, 
empowering  the  Legislature  to  relieve  the  common- 

-.78 


Foreign  Immigrants  Cow  the  Negro  Voter 

wealth  of  its  free  negro  population  "  by  removal 
or  otherwise."  *  This  was  the  typical  attitude  of 
the  South  towards  the  freeman  of  color.  Thus, 
North  or  South,  he  was  a  man  without  a  country. 
Though  New  York  at  this  time  contained  nearly 
fifty  thousand  of  this  population — which  in  a  State 
having  manhood  suffrage  would  give  ten  thousand 
voters — only  about  one  thousand  were  voters;  not 
so  much  because  they  lacked  the  constitutional 
qualifications  as  that  they  did  not  dare  to  vote. 
Hostility  to  the  negro  voter  was  intensified  by 
foreign  immigration.  Few  Irishmen  felt  con- 
strained to  allow  a  negro  to  vote. 

As  free  schools  overspread  the  land,  particularly 
the  North,  the  free  negro  had  to  deny  himself  fur- 
ther. Yellow-fever  or  the  small -pox  would  not 
more  suddenly  and  surely  break  up  a  school  than 
the  presence  of  a  negro  pupil.  Nor  has  racial  hos- 
tility of  this  kind  yet  wholly  disappeared.  In  the 
far  North — as  in  New  Hampshire,  Vermont,  North- 
ern New  York,  and  Michigan — a  negro  child  was 
somewhat  of  a  curiosity  and  was  suffered  to  attend 
school  in  peace.  A  Chinese  baby  or  a  papoose 
would  have  been  given  the  same  passing  atten- 
tion. But  Northern  patience  with  the  free  ne- 
gro's delinquencies  was  short ;  perhaps  shorter 
than  Southern.  Somewhat  paradoxically,  the  ab- 
olition sentiment  was  strongest  in  the  cold  parts 
of  Vermont,  and  the  laws  enacted  against  run- 
away slaves  —  the  black  code   in   general — were 

*  Virginia,  constitution  of  1850,  Art.  iv.,  Sees.  20,  21. 
379 


Const  it  lit  ioiial  History  of  tijc  American  People 

most    terrible    in    tropical    Louisiana.      Extremes 
met  in  Virginia. 

From  the  border  States  to  the  great  lakes  ran 
the  various  branches  of  the  underground  railroad. 
Thousands  of  fuf{itive  slaves  reached  Canada  over 
this  line.  Its  mana2:ement  baffled  Governors, 
sheriffs,  and  constables.  The  men  and  women 
who  kept  its  "  stations  "  were  among  the  most  re- 
spectable and  intelligent  in  their  community. 
They  held  slavocracy,  and  its  aiders  and  abettors, 
in  contempt.  They  thought  it  a  virtue  to  break 
the  fugitive-slave  law.  They  were  the  only  peo- 
ple in  the  North  who  treated  negroes  as  they 
treated  other  men  and  women.  But  their  work 
was  done  in  secrecy,  often  in  fear,  and  under  the 
cover  of  night;  and  sometimes,  when  the  fugitive 
was  in  sight  of  safety,  the  law  seized  him  and 
thrust  him  back  into  slavery.* 

*  At  the  mouth  of  the  sixteen -mile  creek,  in  Erie  County, 
Pennsylvania,  lived  a  Whig  farmer  named  Crawford.  His  house 
stood  in  a  grove  of  locust-trees,  a  few  rods  from  the  beach  of 
Lake  Erie.  He  was  an  agent  on  the  mysterious  road,  whose 
frightened  dusky  passengers  were  moved  at  night,  secretly,  from 
station  to  station.  One  evening  in  early  autumn,  at  which  time 
the  Lake  Shore  country  of  to-day  is  radiant  with  the  odor  of 
the  vineyards,  and  the  Virginia  creeper  hangs  in  prismatic  hues 
about  the  trunks  of  the  oak  and  the  fruitful  chestnut,  a  peculiar 
knock  was  heard  at  Crawford's  door.  There  stood  a  neighbor 
named  Cass,  an  Englishman  who  had  recently  started  a  woollen 
mill  near  by.  Mrs.  Crawford  assured  him  that  the  family  was 
alone.  He  gave  a  low  whistle,  and  a  man  timidly  came  out  of  the 
bushes  and  drew  near.  He  was  a  fugitive  slave  from  North 
Carolina.  He  was  kindly  received,  was  given  his  supper,  and  put 
to  bed  in  the  spare  room.  About  two  o'clock  in  the  morning 
he  was  suddenly  aroused.  Another  neighbor,  John  Glass  by 
name,  who  had  a  foundry  at  the  mouth  of  the  creek,  had  re- 

•^80 


strong  Race  Hatred  in  the  North 

Hostility  towards  the  free  black  was  due  in  the 
North  principally  to  racial  prejudice.  This  showed 
itself  in  various  ways.  Negroes  were  forbidden  to 
learn  trades  in  the  South  except  as  their  owner 

ported  danger.  The  sheriff  was  in  the  village  about  a  mile  to 
the  south,  and  in  the  morning  would  surely  search  Crawford's 
house,  for  he  was  known  to  be  an  Abolitionist,  and  was  suspected 
of  secreting  slaves.  The  frightened  negro  begged  to  be  taken  at 
once  across  the  lake,  which  is  here  about  sixty  miles  wide.  With 
Canada  in  sight,  must  he  be  dragged  back  into  slavery.?  The 
men  were  in  doubt  what  to  do,  when  Mrs.  Crawford  suggested 
that  the  negro  go  at  once  with  Glass  to  his  foundry,  where  he 
should  be  stowed  in  the  bottom  of  a  great  wagon,  be  covered 
with  frames  and  patterns,  and  be  started  at  once  for  Erie,  six- 
teen miles  away.  Glass  often  made  the  trip  in  his  business,  and, 
as  he  always  started  before  daylight,  his  wagon  would  not  excite 
suspicion. 

As  soon  as  the  negro  was  gone  Mrs.  Crawford  called  her  eld- 
est son  and  bade  him  finish  his  sleep  in  the  negro's  bed.  If  the 
sheriff  asked  him  any  questions,  he  could  say  that  he  had  not 
seen  the  negro  and  he  had  a  bad  cough.  His  younger  brother 
was  left  in  the  bed  where  the  two  had  been  sleeping.  Early  in 
the  morning  the  sheriff  appeared,  read  his  warrant,  and  began 
searching  the  house.  He  was  compelled  to  be  satisfied  with  the 
family's  explanations,  and  went  away,  turning  his  horse's  head 
towards  Erie.  Glass  had  some  five  hours'  start,  and  was  now 
rapidly  approaching  the  city.  He  had  stopped,  as  usual  with 
travellers,  at  the  half-way  house,  where  he  watered  his  horses, 
leaving  them  for  a  few  moments  while  he  got  a  hasty  breakfast. 
He  was  about  driving  on  when  a  farmer,  who  lived  some  miles 
to  the  east,  now  on  his  way  home  from  Erie,  drew  up  to  water 
his  team.  He  had  left  Erie  about  the  time  Glass  had  left  his 
home.  As  it  became  light  enough  for  him  to  read,  he  noticed 
here  and  there  posted  on  the  trees  an  offer  of  a  large  reward  for 
the  capture  of  one  Ned,  a  runaway  slave  from  North  Carolina. 
The  reward  was  larger  than  usual. 

As  he  was  watering  his  horses  it  occurred  to  him  to  mention  the 
reward  to  Glass,  and,  stepping  forward,  while  talking,  his  eyes  ran 
over  the  load  of  frames  and  patterns.  Quickly  he  detected  the 
negro  beneath  them.  Knowing  that  Glass  was  an  Abolitionist, 
for  he  himself  was  an  equally  ardent  pro-slavery  Democrat,  he  at 

381 


ConstiititioiLil  History  of  the  /Imerican  People 

mic'-ht  consent,  for  his  own  purposes.*  Usually, 
on  a  large  plantation,  there  were  carpenters  and 
cobblers  and  blacksmiths  among  the  slaves,  but 
rarely  any  one  who  could  do  a  piece  of  work  re- 
quiring skill.  In  the  North  no  man  wanted  a 
negro  apprentice,  and,  except  at  farm-work  in  the 
same  field,  no  man  was  seen  associated  with  a  ne- 

once  took  in  the  situation.  Discreetly  concealing  his  discovery, 
he  jumped  into  his  wagon  and  started  his  horses  rapidly  towards 
his  house  and  the  constable's.  Glass,  with  equal  speed,  started 
for  Erie,  to  deliver  the  negro  into  the  hands  of  a  faithful  captain, 
who  could  be  relied  on  to  take  him  across  the  lake.  He  sus- 
pected that  the  negro  had  been  discovered  and  that  the  man 
would  not  hesitate  to  betray  him  for  the  reward.  Meanwhile, 
the  sheriff  was  galloping  rapidly  towards  Erie,  when  he  met 
the  informer  and  the  news  he  was  seeking.  Quickly  agreeing 
about  payment  of  the  reward,  he  spurred  on  after  the  foundry- 
man.  Glass  had  reached  the  dock  and  had  driven  into  a  shed, 
where,  concealed  from  public  view,  the  negro  was  quickly  handed 
over  to  the  captain.  He  was  put  into  a  dory,  covered  with  tar- 
paulin, and  rowed  to  a  little  sloop  at  anchor  in  the  bay.  Just  as 
he  was  climbing  on  board,  the  sheriff  appeared  on  the  wharf, 
quickly  detected  the  negro,  and  soon  had  him  in  his  possession, 
chained  and  manacled.  At  once  the  bewildered  negro  was 
roughly  started  towards  the  South,  was  returned  to  his  master, 
and  lost  in  slavery. 

The  reward,  a  small  fortune  for  those  times,  was  paid  to  the 
informer.  Fifty  years  after  the  event  its  incidents  were  related 
to  me  by  the  woman  who  so  zealously  strove  to  give  liberty  to 
the  wretched  African.  With  old  age  had  come  total  blindness, 
"  but,"  said  she,  "  my  sight  was  not  taken  away  before  I  was  per- 
mitted to  see  slavery  abolished.  And  more — though  it  is  not  for 
me  to  tell  it  —  the  blood  -  money  received  for  that  poor  negro 
brought  wretchedness  to  three  generations  of  the  informer's 
family,  and,  strange  to  say,  was  finally  lost  in  speculating  in 
Southern  lands.  'Justice  and  judgment  are  the  habitation  of 
Thy  throne  ;  mercy  and  truth  shall  go  before  Thy  face.' " 

*  By  the  Georgia  act  of  December  27,  1845,  to  contract  with  a 
free  person  of  color  as  a  mechanic  or  mason,  to  erect  or  repair  a 
building,  was  punishable  by  a  fine  of  two  hundred  dollars. 

3S2 


Forcing  the  Negro  from  the  Labor  Market 

gro  in  work.  Massachusetts  complained,  through 
its  Legislature,  in  1S21,*  that  free  negroes  were 
forced  into  Northern  States,  and  specially  into 
Massachusetts,  where  they  became  a  disorderly,  in- 
dolent, and  corrupt  population  in  the  larger  towns. 
Yet  in  these  they  were  excluded  from  the  schools, 
and  from  any  kind  of  labor  except  that  of  the 
lowest  grade.  In  New  York,  and  Philadelphia 
also,  the  Northern  cities  in  which  they  were  most 
numerous,  they  were  rigorously  excluded  from  the 
schools,  and  as  soon  as  foreign  immigration  set 
in  and  the  Irish  began  to  contend  for  occupation 
as  unskilled  laborers,  the  era  of  labor  riots  began, 
in  which  public  opinion  was  outrageously  on  the 
side  of  the  aggressors. 

It  is  not  strange  that  the  North  catalogued  free 
negroes  as  a  part  of  the  criminal  class.!  Nothing 
else  was  left  to  them  than  to  play  the  part  of  social 
outcasts.  The  Massachusetts  House  of  Representa- 
tives expressed  Northern  opinion  in  its  resolutions 
against  the  substitution  of  free  negroes  "  in  occu- 
pations which,  in  the  end,  it  would  be  more  advan- 
tageous to  have  performed  by  the  white  native 
population."^ 

The  Northern  churches,  like  the  Southern,  tol- 
erated black  skins  in  the  congregation,  chiefly  be- 
cause there  is  no  overcrowding  on  the  road  to  heav- 


*  Resolution  of  House  of  Representatives,  June  4,  1821. 

t  Tiiis  is  brought  out  in  the  discussion  of  negro  suffrage  in 
the  constitutional  conventions  of  New  York  in  1821  and  1846;  in 
that  of  Pennsylvania  in  1838. 

X  Resolution  of  House  of  Representatives,  June  4,  1821. 

383 


Constitutional  History  of  the  American  People 

en,  and  competition  for  future  rewards  does  not 
affect  the  social  standing  or  the  trade  or  the  poli- 
tics of  the  world.  An  ebony  face  in  the  gallery  was 
likely  to  put  the  missionary  spirit  of  the  society 
into  a  mild  glow,  and  chanty  takes  pride  in  reach- 
ins:  the  outcasts.  It  followed  that  what  little  com- 
fort  the  free  negro  got  in  the  North  was  chiefly 
of  an  ecclesiastical  character.  His  theology  was 
properly  attended  to.  No  man  could  listen  to  his 
petition  to  be  allowed  to  learn  a  trade  or  to  go  to 
school ;  but  his  quaint  supplication,  encouraged  at 
prayer-meeting,  was  something  of  a  sensation.  His 
body  and  mind  might  be  dark,  but  his  soul,  it  was 
said,  was  full  of  light.  Some  of  the  congregation 
were  puzzled  how  a  person  who  could  "  wrestle  so 
powerfully  in  prayer"  could  be  so  persistent  a 
thief,  so  indolent,  so  useless;  but  probably  it  was 
all  in  fulfilment  of  sundry  obscure  references  to 
Ethiopia  in  the  prophecies.  There  was  some 
contest  among  the  various  churches  to  enroll  the 
object  of  so  much  attention  from  the  prophets. 
The  Sunday-school  taught  him  to  read,  and  thus 
he  found  an  entrance  into  a  hitherto  forbidden 
world.  He  came  with  wife  and  children,  and  thus 
circumvented  the  State. 

Down  to  1840  free  public  schools  were  not  com- 
mon North  or  South.  No  Southern  school  ad- 
mitted a  negro,  and  no  Northern  school  welcomed 
him.  As  soon,  however,  as  the  free-school  system 
was  understood  by  the  people,  and  this  may  be 
said  to  be  about  1845,  public  policy  demanded  that 
all  the  children  of  the  community  should  be  made 


Fighting  for  Popular  Education 

welcome.*  It  is  now  forgotten  that  serious,  and 
for  a  long  time  successful,  opposition  was  made  to 
common  schools.     Their  establishment  was  a  pub- 

*  Governor  J.  W.  Dana,  of  Maine,  in  his  message  to  the  Legis- 
lature, Marcli  19,  1847,  complains  of  the  lack  of  public  interest  in 
the  free  schools.  Connecticut  practically  established  a  common- 
school  system  in  1841.  New  Jersey  attempted  free  schools,  on  a 
limited  scale,  under  the  act  of  February  12,  1817.  Pennsylvania 
inaugurated  a  system  by  the  acts  of  April  1,  1834,  and  April  15, 
1835,  but  it  did  not  prosper  until  the  acts  of  April  11,  1848,  and 
April  7,  1849.  Delaware,  by  acts  of  January  28  and  February 
7,  1817,  established  a  fund  for  the  education  of  poor  children. 
The  African  School  Society  of  Wilmington  was  organized  under 
the  act  of  January  20,  1824.  North  Carolina  established  a  school 
system  by  the  act  of  January  1 1,  1841.  In  South  Carolina,  schools 
for  the  poor  began  under  the  act  of  December  11,  181 1,  which 
was  many  times  amended  later;  free  schools  began  under  the 
acts  of  December  19,  1836,  and  December  17,  1841,  especially  the 
latter  act.  In  Georgia  a  general  educational  system  was  inaugu- 
rated by  the  act  of  December  28,  1838  ;  see  also  acts  of  December 
19,  1829;  December  24,  1837;  December  10,  1840.  In  Missouri, 
act  of  1839.  See  joint  resolution  of  Florida  Legislature,  relative 
to  education,  December  21,  1846.  See  free-school  act  of  Louisi- 
ana, May  3,  1847;  also  constitution  of  1845,  Sec.  135.  Kentucky 
began  its  school  system  under  the  act  of  January  29,  1830.  See 
Tennessee  acts  of  1826,  1829,  and  1835  ;  also  constitution  of  1834, 
Art.  xi..  Sec.  10.  Mississippi  inaugurated  its  common  schools  un- 
der the  act  of  March  4.  1846.  Arkansas,  under  the  act  of  Feb- 
ruary 3,  1843.  Ohio,  act  of  January  30,  1827;  a  school  system 
for  whites,  February  28,  1834;  March  27,  1837;  March  7,  1838. 
The  act  of  March  23,  1840,  abolished  the  office  of  Superintendent 
of  Common  Schools  and  authorized  the  Secretary  of  State  to  em- 
ploy a  clerk  at  four  hundred  dollars  a  year  to  perform  its  offices. 
Separate  schools  for  negroes  were  inaugurated  under  the  act  of 
February  10,  1841,  and  that  of  February  24,  1848.  The  Indiana 
Legislature,  by  joint  resolution,  January  9, 1821,  recommended  the 
appointment  of  a  committee  to  draft  a  bill  for  a  general  system 
of  education,  "  from  township  school  to  university,"  in  accordance 
with  the  constitution,  18 16,  Art.  ix..  Sec.  2.  See  act  of  February 
2, 1832.  Illinois  established  free  schools  under  the  act  of  January 
15.  1825. 

L— BB  385 


Constitutional  History  of  the  American  People 

lie  issue  from  1S35  to  1845.  Tlic  publie  aeeepted 
them  chiefly  because  they  would  enable  the  chil- 
dren to  get  on  in  the  world  more  easily  and  suc- 
cessfull)-  than  their  parents  had  done.  Moreover, 
education  was  a  panacea  for  the  ills  of  society. 
Send  the  children  to  school,  and  vice  and  immo- 
rality would  disappear.  Through  this  open  door 
of  reform  negro  children  in  the  North  went  to 
school,  and,  it  may  be  said,  almost  as  soon  as  the 
children  of  the  poorer  whites. 

In  the  South  an  entirely  different  idea  of  public 
policy  prevailed  —  dominated  by  slavery.  It  ex- 
cluded the  negro,  slave  or  free,  from  every  means 
of  information  likely  to  make  him  intelligent.  He 
must  not  learn  to  read,  nor  be  suffered  to  preach, 
except  in  the  presence  of  white  men.  The  camp- 
meeting,  ever  dear  to  the  African  heart,  was  for- 
bidden unless  controlled  by  the  presence  of 
whites.*  Slavery  thus  put  a  muzzle  on  speech 
throucrhout  the  South,  and  at  last  custom  became 
not  only  a  property  of  easiness,  but  an  article  of 
faith. 

A  religious  system  rarely  escapes  becoming  ty- 
rannical, because  religion  is  usually  the  chief  police 
system  of  the  State.  Public  policy  often  dictates 
cruel  laws,  and  religion  rarely  sets  itself  against 
the  laws.  The  code  found  even  more  enthusiastic 
advocates  in  the  pulpit  than  in  the  Legislature  or 
the  courts.  This  was  inevitable  in  a  religious  sys- 
tem supported  by  the  voluntary  contributions  of 

*  For  a  typical  piece  of  legislation  on  the  subject,  see  act  of 
Alabama,  January  16,  1832. 


Slavery  a  Costly  Institution 

slave-holders.  Pro-slavery  and  apologetic  sermons 
were  not  infrequent  in  the  North.  Clergymen  are 
habitually  legalists  and  conservatives ;  therefore 
they  preached  obedience  to  the  law,  prayer  for  its 
repeal,  and  patience  under  its  yoke.  Meanwhile, 
a  revolution  was  in  progress. 

It  must  be  admitted  that  modern  Christianity 
has  tended  ever  towards  the  emancipation  of 
slaves.  This  has  been  partly  due  to  sentiment, 
partly  to  a  sense  of  justice,  and  largely  to  eco- 
nomic necessity.  There  may  have  been  a  time 
when  slavery  was  profitable  in  Egypt,  or  even  in 
the  United  States.  It  is  difficult  to  fix  the  times, 
and  in  this  country  it  ceased  long  before  1850. 
I  know  of  no  better  proof  of  the  unprofitableness 
of  slavery  than  that  produced  in  the  Kentucky 
convention  of  1849.*  It  was  there  shown  that 
Essex  County,  in  Massachusetts,  produced  as  much 
as  the  entire  State  of  South  Carolina.  The  start- 
ling conditions  that  made  this  truth  possible  are 
clear  enough  now,  but  were  realized  by  few.  North 
or  South,  then.  The  world  is  slowly  learning 
that  freedom  is  cheaper  than  slavery ;  those  who 
have  a  conscience  have  always  known  that  free- 
dom is  better. 

During  the  first  half  of  the  nineteenth  century 
every  discovery,  every  useful  invention  contributed 
to  the  betterment  of  the  free  negro.  As  machin- 
ery was  introduced,  wealth  increased,  labor  was  in 
demand,  and  population  was   on  the  move,  west- 

*  See  Chap,  vi.,  Vol.  ii. 
3S7 


Conslifiitioiial  History  of  the  American  People 

ward.  It  is  somewhat  vague  and  paradoxical  to 
say  that  the  free  negro  participated  in  the  general 
benefits  of  the  time,  after  showing  that  he  was  ex- 
cluded from  most  of  them.  However,  it  is  true. 
He  gained  slowly  and  lost  nothing.  Though  wel- 
comed nowhere,  he  found  his  way  everywhere. 
The  new  West  frowned  on  him;  but  he  went  West. 
It  was  hard  for  him  to  get  title  to  a  piece  of  land. 
Even  liberal  Iowa  made  vigorous  efforts  to  prevent 
his  becoming  a  settler.  Local  claim  associations, 
such  as  that  of  Johnson  County  of  1839,  rigorous- 
ly discriminated  against  him,  and  for  a  long  time 
made  his  residence  in  the  Territory  unsafe.*  As 
the  American  world  grew  larger,  and  ceased,  or 
tended  to  cease,  being  provincial,  the  people  of  the 
North  let  the  free  negro  alone.  It  was  a  great  op- 
portunity for  him — indeed,  the  greatest  that  ever 
came  to  his  race.  As  soon  as  he  was  let  alone  he 
began  to  prosper.  There  is  a  hint  here  for  those 
who  are  seeking  the  solution  of  the  race  problem 
in  America.  As  soon  as  the  negro  was  suffered  to 
earn  his  own  living,  like  the  rest  of  the  world  (who 
earn  it),  difficulties  began  to  disappear.  Legislatures 
ceased  sending  out  resolutions  in  complaint  of  free- 
negro  invasions.  Remonstrances  against  negro 
children  in  the  public  schools  became  less  common. 
A  negro  was  seen  here  and  there  planing  a  board, 
shingling  a  roof,  mending  a  shoe,  or  laying  a  wall. 

*  See  the  Constitution  and  Records  of  the  Claim  Association 
of  Johnson  County,  Iowa,  with  Introduction  and  Notes  by  Benja- 
min F.  Shambaugh,  A.M. ;  8vo,  196  pp.  The  State  Historical  So- 
ciety of  Iowa,  Iowa  City,  Iowa,  1894. 

388 


Softening  of  Public  Feeling  Towards  the  Negro 

A  man  thus  engaged  was  not  likely  to  belong  to 
the  criminal  class.  Public  policy  began  to  discover 
this  simple  fact,  as  the  half-century  drew  to  a  close. 
Public  opinion  began  to  permit  what  it  had  long 
thought,  "  Give  the  negro  a  chance."  Yet  the  priv- 
ileges accorded  him  in  the  North  were,  as  yet,  by 
sufferance  rather  than  by  law.  A  vague  sense  of 
economic  necessity  was  putting  the  laws  in  their 
true  light.  They  were  fast  falling  behind  the  times. 
Everybody  could  find  work  in  the  North.  This 
was  the  primary  favorable  condition.  Had  it  been 
otherwise,  the  condition  of  the  free  negro  would 
have  been  hopeless.  If  in  the  North  he  was  seen 
with  a  gun,  no  one  was  terrified.  Squirrels  and  ducks 
were  plentiful.  In  the  South  arms  were  denied  him 
under  severe  penalties.*  There  a  free  negro  with  a 
shot-gun  suggested  a  servile  insurrection.  As  the 
code  grew  blacker,  so  did  the  North — for  its  negro 
population  increased  more  rapidly.  Numerically, 
the  gain  was  in  the  States  north  of  the  Ohio. 
From  1840  to  1850  there  was  scarcely  any  increase 
in  the  negro  population  of  New  England  and  the 
Middle  States.  In  Massachusetts  and  New  York 
it  decreased.  The  lines  of  least  resistance  for  the 
white  and  black  alike  ran  into  the  Northwest. 
This  was  due  chiefly  to  climate.  Ohio,  Indiana, 
Southern  Michigan,  and  Illinois  are  warmer  than 
Massachusetts  or  New  York.     Unconsciously,  the 

*  Acts  of  Delaware,  February  lo,  1832;  Maryland,  March  14, 
1832;  Virginia,  March  15,  1832  ;  North  Carolina,  January  11,  1841  ; 
Georgia,  December  7,  1807.  Nat  Turner's  insurrection  (1831)  was 
the  immediate  cause  of  severe  laws  on  this  subject  in  the  South. 

389 


Coiisiitiitioiidl  History  of  the  American  People 

negro  was  travelling  along  isothermal  lines.  It 
followed  that  opposition  to  him  continued  in  the 
Northwest  after  it  had  ceased  in  New  England, 
New  York,  and  Pennsylvania.  Objections  heard 
in  New  York  in  182 1  were  repeated  in  Ohio  in 
1 85 1.  They  were  heard  in  Wisconsin  and  Iowa 
in  1847;  ^^  Illinois  in  1848.  But  there  is  a  new 
tone  to  the  general  discussion — a  tone  of  greater 
toleration.     It  is  heard  in  Michigan  in  1850.* 

Selfishness  is  at  the  bottom  of  all  this  hostili- 
ty. This  is  illustrated  in  California.!  The  negro, 
free  or  slave,  should  be  excluded,  lest  he  deprive 
white  men  of  a  monopoly  of  the  mines.  This  was 
exactly  the  spirit  of  Massachusetts  in  182 1,  of 
Pennsylvania  in  1838,  of  Iowa  in  1847.  It  was 
the  spirit  of  slavery,  for  that  is  the  spirit  of  selfish- 
ness on  the  most  gigantic  scale. 

It  seems  as  if  white  men,  in  democratic  America, 
during  this  half  -  century,  denied  rights  to  black 
men,  lest  the  wealth  of  the  country — social,  political, 
industrial,  and  educational,  be  divided  with  them. 
A  fateful  step  had  been  taken  by  the  most  power- 
ful commonwealth — New  York — when,  in  182 1,  it 
made  it  possible  for  a  negro  to  become  a  voting 
citizen.  True,  there  was  discrimination  in  the 
grant.  The  negro  must  have  a  clear  freehold  es- 
tate of  the  value  of  two  hundred  and  fifty  dollars ; 
must  have  been  rated,  and  paid  taxes  on  the  es- 
tate, and  have  been  a  citizen  of  the  State  for  three 

*  See  Chap,  viii.,  Vol.  ii.,  pp.  215,  235;  Chap.  ix..  pp.  249-254. 
t  See  Ch;ip.  x.,  Vol.  ii.,  pp.  297-304,  315;  Chap,  xi.,  pp.  316-330, 
353-362. 

390 


Race  Prejudice  in  California 

years.  A  white  man  could  gain  residence  in  a 
year,  and  was  not  required  to  own  real  estate  or 
personal  property.*  But  the  negro  was  given  a 
chance,  and  that  changed  the  history  of  democracy 
in  America.  The  influence  of  New  York,  in  this 
respect,  is  clearly  seen  when  California  sought  ad- 
mission into  the  Union.  Recognition  of  nesfro 
suffrage  might  be  delayed,  but  it  must  come  in 
time.  When,  in  1821,  Rufus  King  introduced  the 
revolutionary  provision  into  the  proposed  consti- 
tution of  New  York,  he  cited  as  sufficient  author- 
ity the  clause  in  the  national  Constitution  declar- 
ing the  equal  rights  of  the  citizens  of  the  several 
States.  In  its  consequences  the  New  York  inno- 
vation ranks  in  importance  with  the  Emancipa- 
tion Proclamation  and  the  abolition  of  slavery, 
for  which  it  paved  the  way. 

So  strong  was  race  prejudice  in  1850  that  Cali- 
fornia only  by  a  meagre  majority  escaped  enrol- 
ment in  the  list  of  States  which  then  excluded 
free  persons  of  color,!  Their  exclusion,  it  was 
thought,  could  safely  be  left  to  public  sentiment. 
At  this  time  the  act  of  California  was  of  critical 
importance.  Doubtless  the  State  must  be  in- 
cluded among  those  of  the  time  holding"  most  lib- 
eral ideas.  It  made  its  soil  free,  and,  at  least  by 
the  letter  of  its  law,  it  excluded  no  freeman.  It 
stands,  therefore,  as  the  embodiment  of  American 
sentiment  at  this  time,  and  pointed  the  way  by 
which  things  and  men  were  going.     It  intimated 

*  New  York,  Constitutions  of  1821  and  1846,  Art.  ii.,  Sec.  i. 
t  See  Chap.  Xi.,  Vol.  ii.,  p.  361. 

391 


Constitutional  History  of  the  American  People 

that  the  time  was  at  hand  when  it  would  be  im- 
possible in  America  for  half  a  million  free  people 
to  be  a  people  without  a  country.  Before  the 
change  implied  in  this  promise  could  be  realized, 
all  things  pointed  to  a  fierce  struggle.  Its  nature 
was  outlined  in  the  debate  in  Louisiana*  in  1845, 
and  in  Kentucky  four  years  later;  in  the  resolu- 
tions of  State  Legislatures  relative  to  slavery  ex- 
tension, and  in  the  convergence  of  population  on 
Kansas.  These  signs  of  the  times  pointed  out 
that  the  impending  struggle  was  between  two 
systems  of  government  —  one  founded  on  prop- 
erty, the  other  on  persons.  Primarily,  it  was  a 
struggle  for  the  extension  of  the  franchise,  for 
with  the  franchise  go  all  rights  known  to  free- 
men. 

On  the  threshold  of  this  strus^gle  between  State 
sovereignty  and  national  sovereignty,  between  free 
labor  and  slave  labor,  between  suffrage  extension 
and  suffrage  limitation,  the  commonwealths  divid- 
ed into  two  groups.  Public  opinion  in  the  North 
was  shifting  rapidly,  and  as  yet  was  uncertain.  The 
border  States,  Kentucky  claimed,  held  the  key  to 
the  future  of  the  Union.  The  word  "white,"  in 
all  Southern  and  in  most  Northern  constitutions, 
yet  preserved  the  legal  fiction  that  government 
was  instituted  for  the  exclusive  benefit  of  a  fa- 
vored race.  This  fiction  continued  the  stern  fact 
of  history.  There  was,  however,  a  new  shade  of 
color  to  the  fiction.     A  third  estate  lay  between 

*  See  Chap,  xiii.,  p.  400. 


Northern  Ameliorative  Measures  for  the  Negro 

the  slaves  and  the  slave-holders — the  free  negroes. 
They  gravitated  towards  slavery  in  the  South ; 
in  the  North,  towards  citizenship.  As  the  half- 
century  closed,  their  children  were  found  in  the 
free  schools  of  New  Hampshire,  Vermont,  Mas- 
sachusetts, New  York,  Ohio,  and  Michigan.  In 
these  States,  and  in  Pennsylvania,  Maryland,  Wis- 
consin, and  Iowa,  occasionally  negroes  were  suf- 
fered to  work  as  mechanics,  but  as  yet  they  pos- 
sessed little  skill  in  the  use  of  tools.  Ao^es  of 
slavery  had  robbed  them  of  much  of  man's  tool- 
using  ability,  but  not  wholly  of  his  tool-using  ca- 
pacity. On  the  emotional  side  of  their  religious 
nature  they  were  inferior  to  none  of  the  whites 
among  whom  they  lived.  Theirs  was  an  anoma- 
lous condition  for  freemen  in  a  democracy.  Legis- 
lation in  the  South,  keeping  pace  with  public  opin- 
ion, became  more  and  more  oppressive.  In  the 
North  it  slowly  became  remedial  and  helpful.  In 
some  degree  the  miserable  condition  of  this  class 
was  mitigated  by  its  ignorance  of  better  things. 
It  had  never  known  opportunity.  It  had  for  ages 
known  only  the  degradation  possible  in  slavery. 
Free  schools  were  organized  just  in  time  to  bene- 
fit this  class  in  the  North.  Negroes  were  suffered 
to  attend  lest  they  grow  up  wholly  in  ignorance 
and  vice,  and  thus  ultimately  cost  the  State  many 
times  more  than  the  expense  of  teaching  them  to 
read  and  write.  Mechanical  trade  -  schools  were 
already  thought  of,  but  legislative  notions  respect- 
ing them  were  of  a  different  order  from  those 
which    called   into    existence    the    later   technical 

393 


Constitutional  Histo/y  of  the  /I  in  mean  People 

schools.*  Socialism  had  not  yet  gone  so  far  as 
to  possess  the  public  mind  that  the  state  owes  to 
every  citizen  a  bread-winning  education.  It  may 
be  said  that  whatever  the  state  did  for  the  free 
negro  down  to  1850,  it  did  as  a  means  of  self- 
protection,  not  for  love  of  the  negro.  Public 
schools  were  a  form  of  public  insurance  against 
vice  and  crime,  or,  as  was  often  said,  "  the  cheap 
defence  of  the  nation." 

Self-interest  compelled  the  Northern  States  to 
include  the  free  negro  in  the  list  of  its  beneficia- 
ries. Self-interest  compelled  the  slave -holding 
States  to  exclude  him  from  the  list.  He  must  be 
treated  as  King  James  treated  the  Puritans — 
harried  out  of  the  land.  It  is  rather  curious  that 
free  negroes  were  permitted,  for  a  time,  to  be  en- 
rolled in  the  militia  in  one  State — and  that  Louisi- 
ana. The  constitutions  of  the  Northern  States 
carefully  excluded  them.  In  Louisiana  a  special 
act  of  the  Legislature!  authorized  free  negro  troops 
to  be  raised  during  the  second  war  with  England, 
but  only  those  residing  in  the  parish  of  Natchi- 
toches, who  possessed  real  estate  of  the  value  of 
one  hundred  and  fifty  dollars,  were  eligible.  This 
was  the  only  instance  of  the  enrolment  of  negro 
troops  during  the  half -century.  General  Jackson 
wrote,  in  a  letter  to  President  Monroe,  describing 
the  battle  of  New  Orleans,  "  I  saw  Pakenham  reel 
and  pitch  out  of  his  saddle.     I  have  always  believed 

*  See  act  of  the  New  Hampshire  Legislature  of  July  4,  1834, 
providing  for  a  "  manual- labor  "  or  "self-supporting  system  of 
education."  t  Act  of  January  30,  181  5. 

394 


Concessions  Prompted  by  Exigencies 

that  he  fell  from  the  bullet  of  a  freeman  of  color, 
who  was  a  famous  rifle-shot,  and  came  from  the 
Attakapas  region  of  Louisiana."* 

If  war  be  man's  most  glorious  occupation,  and 
the  death  of  the  enemy's  commander-in-chief  be 
desirable,  America  should  erect  a  monument  to 
this  forgotten  free  negro,  who,  on  a  property  qual- 
ification of  a  hundred  and  fifty  dollars,  served  so 
faithfully  at  the  battle  of  New  Orleans.  Was  not 
this  almost  as  great  a  service  as  to  command  a 
negro  regiment.?  Less  than  a  half -century  later 
a  great  many  people  in  the  North  were  converted 
to  the  idea  that  a  black  skin  was  good  enough  to 
stop  bullets  fired  by  those  fighting  for  slavery. 
The  case  was  a  compound  of  justice  and  military 
necessity.  What  gains  were  made  during  this 
half -century  by  free  persons  of  color  were  per- 
mitted by  the  white  race,  partly  as  an  act  of  jus- 
tice, but  principally  because  of  economic  neces- 
sity. This  last  phrase  was  seldom  heard  from 
1800  to  1850.  It  is  of  more  recent  use.  Few 
then  living  realized  that  the  free  negroes  of  the 
United  States  were  both  political  and  economic 
barometers.  A  despised  race  is  not  likely  to  be 
taken  as  the  unit  of  measure  of  civilization.  There 
are  many  units  in  America,  and  one  was  the  con- 
dition of  the  free  negro.  It  was  no  more  anom- 
alous than  the  existence  of  slavery  in  a  democ- 
racy, the  corner-stone  of  whose  political  theory  was 
and  is  the  equality  of  men.     A  democracy  that  en- 

*  The  Century  Magazine,  January,  1897,  p.  361. 
395 


Const  it  lit  ioiial  History  of  the  American  People 

slaved  three  millions  would  be  expected  to  deny 
citizenship  to  freemen  of  color.  As  long  as  this 
continued  freedom  in  America  was  a  paradox. 

What  to  do  with  the  negro,  free  or  slave,  was 
the  first  and  most  serious  question  whenever  a 
Territory  was  organized,  a  State  admitted,  or  its 
government  revised.  The  question  was  funda- 
mental, because  it  involved  the  right  of  a  man 
to  himself,  as  well  as  the  right  of  one  man  to 
own  another.  It  was  involved  in  the  apportion- 
ment of  representation,  as  illustrated  in  Louisiana 
in  1845;  in  the  definition  of  legislative  powers,  as 
illustrated  in  Kentucky  in  1849;  and  again  in  the 
discussion  of  the  franchise  and  the  rights  of  citi- 
zens, as  illustrated  in  California  and  Michigan  in 
1849  and  1850.  The  question  had  been  discussed 
before, but  in  narrower  relations.  New  York  began 
the  discussion  in  182 1,  and  continued  it  in  1846. 
Virginia  heard  Marshall  and  Madison  and  Mon- 
roe  and  their  distinguished  colleagues  discuss  it  in 
1829.  Pennsylvania  labored  to  solve  the  question 
nine  years  later.  North  Carolina,  in  1835,  met  in 
convention  for  the  express  purpose  of  taking  from 
free  negroes  the  right  to  vote. 

Other  questions  agitated  the  public.  Should 
judges  be  elected  ?  Should  circuit  give  place  to 
resident  district  courts  ?  Should  representation 
be  apportioned  according  to  wealth  or  persons, 
and  if  by  persons,  should  slaves  and  free  negroes  be 
included?  What  powers  should  be  granted,  what 
denied,  to  the  Legislature.'*  How  should  corpora- 
tions be  created  and  regulated  ?     To  what  extent 

39^^ 


Organic  Laws  of  the  State  Constitutions 

should  free  schools  be  established  ?  To  whom 
should  the  rights  of  citizenship  be  granted?  As 
the  century  grew  older,  these  questions  stood  for 
reforms.  They  were  answered  in  all  the  com- 
monwealths, but  the  answers  are  not  recorded  in 
all.  From  1776  to  1851  the  Union  increased  from 
thirteen  to  thirty- one  States,  and  these  adopted 
fifty-nine  constitutions.  Each  of  these  was  a  re- 
form constitution.  Each  stands  for  what  was  con- 
sidered, at  the  time  it  was  made,  a  remedy  for  ex- 
isting evils.  It  would  be  highly  interesting  and 
instructive  to  know  by  what  process  these  organic 
laws  came  into  being;  what  arguments  were  ad- 
vanced, what  remedial  measures  were  proposed 
but  rejected ;  what  interpretation  of  civil  needs 
was  made  by  the  convention  that  undertook  to 
give  the  State  a  better  fundamental  law.  But  this 
knowledge  is  denied  us,  save  for  less  than  one- 
third  of  the  constitutions  adopted.  The  journals 
of  nearly  fifty  of  the  constitutional  conventions 
from  1776  to  1 85 1  are  in  print,  but  they  are  a 
colorless  and  unsatisfactory  record.  It  is  from  the 
debates  in  seventeen  of  these  conventions  that  we 
obtain  our  chief  knowledge  of  the  ideas  that  domi- 
nated our  organic  laws  during  the  three  quarters 
of  a  century  that  they  cover.  A  perusal  of  these 
debates  discloses  much  repetition  of  wants,  of 
remedies  proposed,  and  of  remedies  adopted.  In 
each  State  there  are  needs  purely  local,  but  there 
are  reforms  demanded  by  all.  The  extension  of 
the  suffrage,  the  apportionment  of  representation, 
the  provision  for  public  schools,  the  establishment 

397 


Constitutional  History  of  tfjc  American  People 

of  a  secure  banking  system,  the  exact  apportion- 
ment of  influence  in  the  government  between  city 
and  country,  immigration,  the  rights  of  married 
women,  and  the  reorganization  of  the  judiciary 
come  up  repeatedly  all  through  these  years.  Legis- 
lative functions  demand  definition ;  trial  by  jury 
must  be  subjected  to  new  tests ;  negro  emancipa- 
tion and  slavery  provoke  discussions  in  all  the 
Southern  States ;  but  from  the  debates  as  they 
come  down  to  us  we  turn  away,  confirmed  in  our 
belief  in  the  truth  of  Goethe's  saying  that  there 
are  many  echoes,  but  few  voices,  in  the  world.  It 
is  the  few  voices  that  we  wish  to  hear,  because  they 
speak  with  authority  during  these  strident  years. 

Much  of  the  constitutional  history  of  the  first 
half  of  the  nineteenth  century  is  abbreviated  in 
the  debates  of  the  constitutional  conventions  that 
assembled  between  1845  and  1S50.  The  civil 
problems  that  agitated  the  country  during  these 
years  had  been  accumulating  a  long  time.  Louisi- 
ana, in  1845,  sought  to  solve  them,  and  may  be 
listened  to  as  the  voice  of  the  Gulf  States.  Ken- 
tucky debated  them  in  its  great  convention  of 
1849,  and  it  spoke  for  the  border  States.  Michi- 
gan, in  1850,  a  strong  commonwealth  of  fifteen 
years,  took  up  the  task  of  their  solution  in  a  series 
of  debates  that  rank  the  Lansing  convention  among 
the  great  expository  bodies  which  our  country  has 
produced.  Michigan  may  be  listened  to  as  speak- 
in<j:  for  the  North.  The  new  West  was  heard  in 
California,  at  Monterey,  in  1849,  when,  for  the  first 
time,    Americans   of    diverse    political   opinions — 

398 


California  and  Slaveocracy 

some  from  free  soil  and  some  from  slave — united 
in  making  an  organic  law  under  the  dominating 
guidance  of  economic  necessity. 

In  California,  slaveocracy  broke  down.  It  could 
not  administer  the  affairs  of  a  commonwealth  whose 
existence  depended  upon  free  labor,  although  a 
large  portion  of  that  commonwealth  lay  below  the 
line  of  the  Missouri  Compromise. 

In  selecting  these  States  as  typical  of  the  North 
and  the  South,  of  the  East  and  the  West,  each  is 
left  to  tell  its  own  story  quite  in  the  words  in  which 
it  was  first  spoken,  in  order  that  the  civil  problems 
that  confronted  the  country  in  1850  may  be  un- 
derstood now,  as  they  were  then  understood  and 
solved.* 

*  The  constitutions  adopted  between  1800  and  1850  are  ex- 
amined and  discussed   at  length    in  Volume   ii.,  Chapters  xiii., 

XIV.,  XV. 


CHAPTER    XTTT 
DEMOCRACY  IN  A  GULF  STATE:   1845— LOUISIANA 

After  years  of  agitation  of  the  subject,  and  after 
expressing  their  will  in  large  majorities  at  succes- 
sive elections,  the  people  of  Louisiana  succeeded, 
in  August,  1844,  in  entering  upon  a  revision  of 
their  State  government.*  The  convention  assem- 
bled at  Jackson  on  the  5th,  adjourned  to  meet  at 
New  Orleans  on  the  20th,  and,  after  a  short  inter- 
mission, resumed  its  session  on  the  14th  of  January, 
1845.  Its  work  was  not  completed  until  the  i6th 
of  May,  when  the  convention  submitted  a  new  con- 
stitution. It  was  ratified  by  popular  vote  on  the  5th 
of  November.  The  reforms  demanded  at  the  time 
of  calling  the  convention  may  be  said  to  be  typical 
of  demands  then  common  over  the  country.  The 
suifrage  should  be  extended,  representation  equal- 
ized, and  the  appointive  system  for  the  judiciary 
give  place  to  the  elective.     Outside  of  the  original 

*  The  principal  authorities  for  this  chapter  are,  Proceedings 
and  Debates  of  the  Convention  of  Louisiana,  R.  J.  Ker,  reporter, 
146  +  962  pp.,  8vo,  New  Orleans,  1845  :  Journal  de  la  Convention 
de  la  Louisiane,  Nouvelle-Orleans,  Imprime  par  J.  Bayon,  367-!- 
II  pp.,  8vo,  1845  :  Rapports  Officials  des  Debats  de  la  Conven- 
tion de  la  Louisiane,  James  Foullonze,  rapporteur,  Imprimes  par 
J.  Bayon,  Imprimeur  de  la  Convention.  460  +  11  pp..  8vo,  Nouvelle- 
Orleans,   1845. 

400 


Fight  to  Extend  the  Franchise 

States  the  judiciary  had  been  seized  by  democracy 
and  the  elective  system  adopted.  In  common- 
wealths having  large  cities,  the  demand  for  the 
extension  of  the  suffrage  was  strongest.  But  in 
some  States,  as  in  Rhode  Island  in  1842,  a  small 
and  so  -  called  Native  -  American  party  strongly 
opposed  the  extension,*  and,  for  a  time,  success- 
fully. In  Louisiana,  conservatives,  in  and  out  of 
the  convention,  were  now  heard  declaring  their 
desire  to  extend  "  the  inestimable  privileges  of  the 
suffrage,"  but  that  it  must  be  "  protected  and  cor- 
rected by  proper  enactments,  such  as  a  registra- 
tion law, "  to  put  a  stop  to  fraud  and  corruption," 
and  be  guarded  by  strict  regulations  "  to  prevent 
bribery."  Louisiana  had  a  large  alien-born  popu- 
lation. The  suffrage  should  be  extended  to  all  en- 
titled to  citizenship,  but  should  not  include  "  birds 
of  passage  " — "  the  floating  population,"  who  could 
not  be  deeply  interested  and  personally  involved  in 
the  prosperity  and  government  of  the  State.  More 
liberal-minded  delegates  wished  to  receive  "with 

*  The  struggle  in  Rhode  Island  culminated  in  "  Dorr's  Rebel- 
lion," and,  after  great  agitation,  in  the  extension  of  the  suffrage. 
No  episode  in  State  history  has  been  more  prolific  of  contro- 
versial pamphlets.  Of  these  there  are  nearly  three  hundred. 
The  best  account  of  the  struggle,  as  an  episode  in  civil  polity,  is 
given  in  the  Interference  of  the  Executive  in  the  Affairs  of  Rhode 
Island,  Report  No.  546,  House  of  Representatives,  twenty-eighth 
Congress,  first  session,  and  in  Luther  vs.  Borden,  7  Howard,  i. 
See  the  joint  resolution  of  the  Illinois  Legislature,  February  27, 
1845,  declaring  Dorr  "a  noble  martyr  in  the  cause  of  human 
liberty"  ,  the  joint  resolutions  of  the  New  Hampshire  Legislature, 
December  27,  1844,  and  July  2,  1845,  blaming  the  Legislature  of 
Rhode  Island;  and  the  New  Hampshire  Legislature's  resolution 
of  July  2,  1847,  investing  Dorr  with  citizenship. 

I. — CC  401 


ConstHiilional  History  of  the  American  People 

open  hearts,  and  with  generosity,  all  those  who 
desired  to  cast  their  lot  among  the  citizens  of 
Louisiana." 

The  Constitution  of  the  United  States  leaves  the 
definition  of  citizenship  to  the  commonwealths.  It 
should  be  made  with  discretion  and  without  impos- 
ing the  slightest  obstacle,  otherwise  one  class  in 
the  State  would  have  advantage  over  another.  Dis- 
tinction of  privileges  between  free  white  citizens 
was  anti-republican,  illiberal,  and  unjust,  and  would 
be  a  source  of  perpetual  struggle  and  discontent  in 
any  commonwealth.  To  New  Orleans  had  come 
many  thousands  of  foreigners  who  promoted  public 
improvements,  and  in  building  up  their  own  fort- 
unes had  built  up  the  fortunes  of  the  city  and 
contributed  towards  paying  the  debts  of  the  State. 
Its  indebtedness  at  this  time  amounted  to  four 
millions  of  dollars,  its  liabilities  to  fifteen.  It  was 
by  the  industry  of  these  "  birds  of  passage  "  that 
the  commonwealth  was  to  look  for  the  cancella- 
tion of  its  obligations.  To  encourage  the  coming 
of  foreigners  was  the  principal  assurance  of  the 
prosperity  of  the  commonwealth.  The  problem 
before  the  convention  was  how  to  extend  the  suf- 
frage without  endangering  the  interests  of  the 
State  by  including  an  undesirable  class  of  voters. 
Universal  suffrage  was  considered  an  unlimited 
mischief  in  Louisiana.  It  was  necessary  to  iden- 
tify the  electorate  as  the  permanent,  responsible 
population  of  the  State.  Foreigners,  temporarily 
residing  in  the  commonwealth,  could  have  no 
identity  of  interest  with  it,  as   they  were  merely 

402 


Position  of  Foreigners  in  the  Slave  States 

there    to   subserve   personal    ends,  which  accom- 
plished, they  would  return  whence  they  came. 

Distrust  of  foreigners,  and  a  general  unwilling- 
ness to  extend  to  them  the  right  of  suffrage,  were 
characteristics  of  slave-holding  States  long  after 
such  sentiments  had  ceased  to  influence  the  people 
of  the  free  States.  The  relation  between  this  senti- 
ment and  the  institution  of  slavery  is  not  difficult 
to  establish.  Undoubtedly  slavery  compelled  its 
advocates  as  far  as  possible  to  exclude  from  the 
commonwealth  all  who  were  not  slave  -  owners. 
Consistency  demanded  this.  Every  white  man  not 
a  slave-owner  was  necessarily  a  secret  foe  to  the 
institution,  as  was  proved  when,  in  the  final  test, 
the  limitations  dictated  by  slavocracy  were  fully 
realized.  Foreigners  residing  for  a  time  in  a  slave- 
holding  State  were  not  likely  to  sympathize  wholly 
with  slavery.  Many  of  them  came  from  free  States, 
many  from  countries  in  Europe  in  which  African 
slavery  was  either  unknown,  or  at  least  viewed  with 
disfavor.  Being  chiefly  concerned  in  commercial 
enterprises,  they  adapted  themselves  for  gainful 
purposes  to  the  industrial  system  in  vogue,  but 
utilized  its  resources  chiefly  for  their  own  ag- 
grandizement. At  least,  they  were  considered  as 
doing  so  by  the  native  inhabitants  of  these  com- 
monwealths. When,  fifteen  years  later,  the  slave- 
holdins  States  sought  to  secede  from  the  Union,  it 
will  be  seen  that  in  their  constitutional  conventions 
they  seriously  debated  the  exclusion  of  foreigners.* 

*  Read  the  speeches  on  "Citizenship"  delivered  in  the  Ala- 
bama Convention  of  1861,  reported  in  The  History  and  Debates 

403 


Constitiilioiial  Histoiy  of  the  American  People 

The  basis  of  their  opposition  to  foreigners  was 
rooted  in  the  unnatural  conditions  of  slavery  it- 
self. The  reasons  for  excluding  the  foreigner  and 
the  free  person  of  color  from  the  suffrage  were 
quite  the  same.  Neither  was  considered  as  per- 
manently identified  with  the  essential  interests  of 
the  State.  The  free  person  of  color  was  a  disturb- 
ing element  in  society;  the  foreigner,  a  disturbing- 
element  in  commerce.  Slavery,  for  its  own  pro- 
tection, therefore,  persistently  sought  to  exclude 
both  from  the  political  community.  They  were 
residents  in  a  slave  -  holding  community  only  by 
sufferance. 

These  selfish  feelings  long  dictated  the  qualifi- 
cations for  the  suffrage.  In  the  eighteenth  century 
they  prescribed  what  amount  of  property  and 
what  religious  notions  should  be  held  by  the  voter 
in  order  to  warrant  the  State  in  admitting  him  to 
participation  in  all  its  privileges.  The  causes 
which  abolished  property  and  religious  qualifica- 
tions later  effaced  ideas  long  held  in  many  States, 
by  which  foreigners  and  free  persons  of  color 
were  excluded  from  the  electorate.  At  last,  in 
1865,  these  same  causes  abolished  slavery  itself, 
since  which  time  they  have  been  operating  to 
obliterate,  as  far  as  is  racially  possible,  all  distinc- 

of  the  Convention  of  the  People  of  Alabama,  Begun  and  Held  in 
the  City  of  Montgomery,  on  the  Seventh  Day  of  January,  1861  ; 
in  which  is  preserved  the  speeches  of  the  Secret  Sessions,  and 
many  valuable  State  Papers.  By  William  R.  Smith,  one  of  the 
Delegates  from  Tuscaloosa.  Montgomery  :  White,  Pfister  &  Co. 
Tuscaloosa  :  D.  Woodruff.  Atlanta  :  Wood,  Honleiter,  Rice  & 
Co.,  1861. 

404 


Representation  on  Federal  Principles 

tions  among  the  persons  who  organically  compose 
the  State. 

It  was  in  Louisiana,  in  1845,  that  the  first  ex- 
haustive debate  occurred  in  a  constitutional  con- 
vention over  the  right  and  the  expediency  of  bas- 
ing representation  in  the  State  on  the  federal 
number.  The  debate  on  this  subject  in  Virginia,* 
in  1829,  was  earnest,  but  brief,  and  though  it  be- 
came the  precedent  for  Louisiana,  public  opinion 
North  and  South  had  meanwhile  greatly  changed, 
and  many  influences  not  existing  in  1829  were 
shaping  the  course  of  American  politics.  The 
Louisiana  convention  spent  some  time  in  fixing 
the  election  day,  a  matter  which  at  first  thought 
might  seem  to  be  of  slight  account.  If  the  elec- 
tion was  not  in  June  or  September,  many  of  the 
most  respectable  citizens  of  the  State  would 
be  practically  disfranchised,  for  during  the  long, 
tropical  summer  they  and  their  families  sought  a 
Northern  clime.  By  the  constitution  of  181 2  the 
election  of  the  General  Assembly  occurred  on  the 


*  See  Proceedings  and  Debates  of  the  Virginia  State  Conven- 
tion of  1829-30.  To  which  are  subjoined  the  new  Constitution 
of  Virginia,  and  the  Vote  of  the  People.  Richmond:  Printed  by 
Samuel  Shepherd  &  Co.  for  Ritchie  &  Cook,  1S30.  Also  Jour- 
nals, Acts,  and  Proceedings  of  a  General  Convention  of  the  Com- 
monwealth of  Virginia,  Assembled  in  Richmond  on  Monday,  the 
Fifth  Day  of  October,  in  the  Year  of  Our  Lord  One  Thousand 
Eight  Hundred  and  Twenty-nine.  Richmond  :  Printed  by  Thom- 
as Ritchie,  1829.  James  Monroe  was  president  of  this  conven- 
tion, and  among  its  members  were  James  Madison,  John  Mar- 
shall, John  Tyler,  John  Y.  Mason,  John  Randolph,  Philip  P. 
Barbour,  and  Abel  P.  Upshur.  Its  debates  were  cited  in  South- 
ern conventions  for  the  next  twenty  years. 

405 


Coiistitniional  Hisforv  of  fbe  American  People 

first  Monday  in  July,  an  inconvenient  time,  as  ex- 
perience had  shown.  In  1812  it  was  common 
throughout  the  Union  for  an  election  to  extend 
over  one,  two,  or  even  three  days.  The  roads 
were  so  bad  in  those  days  that  it  would  have 
been  impossible  for  the  electors  to  convene  in 
any  one  place  on  one  day.  So  apparently  slight 
a  matter  as  a  good  road  determines  an  important 
detail  in  the  administration  of  government.  As 
Rome  conquered  and  governed  the  world  for 
twelve  centuries  largely  by  means  of  a  system  of 
good  roads  connecting  all  parts  of  the  empire 
with  the  capital,  so  in  the  United  States  the  ad- 
ministration of  government  has  improved  as  the 
roads  of  the  country  have  improved ;  and  roads 
include  not  only  canals,  highways,  and  railroads, 
but  also  all  practical  means  in  the  communication 
of  ideas,  such  as  the  mails,  signal  systems,  and 
telegraph  and  telephone  lines.  These  economical 
aids  to  good  government  bring  about  an  attach- 
ment between  the  elector  and  the  interests  of  the 
State.  It  is  in  great  measure  due  to  mechanical 
aids  of  this  nature  that  the  qualifications  of  the 
voter  have  been  simplified.  Less  time  is  required 
for  him  to  gain  a  residence  in  a  community,  be- 
cause good  roads  now  enable  him  to  know  its 
condition  and  its  w^ants  more  intimately  than  the 
longest  period  of  residence  could  give  under  the 
first  State  constitutions.  There  is  some  little 
reason  why,  in  many  commonwealths,  a  man,  in 
order  to  vote,  is  required  only  to  declare  his  in- 
tention of  bccomins:  a  citizen.    Too^ether  with  the 

406 


No  Absolute  Sovereignty  in  the  People 

advantages  of  transportation,  he  has  the  church, 
the  school,  and  the  press  by  which  to  inform 
himself  of  the  wants  of  the  community  in  which 
he  resides. 

On  the  2ist  of  January,  in  the  discussion  of 
qualifications  for  the  suffrage,  a  delegate  expressed 
the  idea  that  only  residents  of  the  State  identified 
with  its  interests  should  be  invested  with  the 
"  vital  prerogative  of  suffrage."  The  utmost  lati- 
tude should  be  given  to  voters  to  select  their  Rep- 
resentatives. It  was  possible,  but  improbable, 
that  they  would  abuse  that  freedom.  "  It  was  not 
likely  they  would  elect  a  colored  person  or  a 
woman  to  represent  them."  Five  years  was 
thought  to  be  a  suitable  period  for  residence. 

Granted  that  sovereignty  resides  in  the  people, 
said  another,  has  not  the  principle,  when  applied 
literally,  proved  to  be  impracticable  ?  A  pure,  un- 
mixed democracy  is  an  absurdit}^  opposed  to  the 
very  nature  of  man.  Some  restraint,  for  the  pro- 
tection of  the  minority  against  the  majority,  is  in- 
dispensable, otherwise  government  becomes  a 
farce.  The  people  are  liable  to  be  led  astray.  It 
is  absurd  to  believe  that  any  government  can 
exist  without  restraint,  reposing  solely  on  the  mo- 
mentary will  of  the  people.  True,  we  often  hear 
that  the  Representative  is  the  servant  of  the  peo- 
ple ;  but  this  is  only  a  half-truth.  The  Representa- 
tive is  equally  their  ruler.  Therefore,  restrictions 
of  some  kind  are  necessary.  These,  in  our  coun- 
try, take  the  form  of  electoral  qualifications.  As  a 
lawyer   accustomed    only   to    practise    under  the 

407 


Coiisliiiitioial  Histcvy  of  the  American  People 

common  law  would  be  incapable  of  practising 
under  the  civil  law  without  due  preparation,  so  a 
citizen,  unless  duly  prepared,  is  unable  to  perform 
the  duties  of  an  elector. 

But  should  not  the  qualifications  of  the  Rep- 
resentative be  the  same  as  those  of  the  voter  ? 
Such  a  requirement  would  conform  with  the 
experience  of  many  States,  and  was  undoubtedly 
the  true  principle  of  representative  government. 
Connecticut*  and  Virginia!  were  precedents.  The 
requirement  would  prevent  the  establishment  of  a 
privileged  class.  Opinion  had  changed  respecting 
the  time  required  of  the  elector  for  residence. 
Fourteen  of  the  States  required  but  one  year, 
and  among  these  were  the  oldest  as  well  as  the 
youngest  in  the  Union.  Why  should  Louisiana 
adopt  a  principle  different  from  that  in  other 
States  ?  Twenty-two  of  them  required  a  residence 
of  but  two  years  for  eligibility  to  the  House  of 
Representatives.  The  legislative  department 
should  be  restrained  quite  as  much  as  the  elec- 
torate. 

One  member  defended  the  requirement  for  a 
five  years'  residence,  because  to  intrust  the  admin- 
istration of  the  affairs  of  the  State  to  strangers 
who  knew  nothing  of  its  institutions,  the  peculiar 
feelings  of  its  people,  their  manners  and  educa- 
tion, would  endanger  their  interests.  It  would 
take  at  least  this  time  for  a  person  of  ordinary 
intellect   coming   from    a   distant   corner  of    the 

*  i8i8.  1 1829. 

408 


Discrimination  against  Foreign-born  Citizens 

Union  to  become  familiar  with  the  institutions, 
history,  local  affairs,  and  especially  the  peculiar 
system  of  laws  of  Louisiana.  While  not  likely 
that  strangers  would  be  elected  to  the  Legislat- 
ure, the  possibility  should  be  prevented.  Indeed, 
should  not  all  the  public  offices  in  the  State  be 
filled  by  her  native  sons .?  They  were  identified 
with  her  by  the  strongest  local  attachment.  It 
was  not  unreasonable  to  suppose  that  the  colleges 
and  schools  of  the  State  would  soon  send  out 
young  men  capable  of  filling  its  highest  offices. 
If  there  were  any  advantages  in  the  public  ser- 
vice, surely  the  natives  of  the  State  were  entitled 
to  them.  Immigration  to  Louisiana  was  increas- 
ing. The  State  differed  in  this  respect  from  Vir- 
ginia or  Massachusetts.* 

This  was  essentially  a  repetition  of  the  old 
argument  that  the  population  of  the  Northern 
States  was  homogeneous,  and  that  of  the  Southern 
heterogeneous ;  and  therefore  the  constitutional 
provisions  of  Northern  commonwealths  could  not 
be  made  precedents  for  the  South — an  argument  of 
great  practical  effect  as  long  as  slavery  continued. 

From  these  opinions  some  dissented.  That  the 
qualifications  of  members  of  the  Legislature,  and 
other  public  officers,  ought   to  be  identical  with 

*  Prior  to  1850  no  authentic  data  existed  of  the  distribution 
and  increase  of  the  foreign  population  in  the  States.  In  that  year 
1.62  of  the  population  of  Virginia,  13.18  of  that  of  Louisiana,  and 
16.49  of  that  of  Massachusetts  were  foreign -born.  This  tends 
to  show  that  the  statement  by  the  member  is  incorrect.  See 
Eleventh  Census  of  the  United  States  (1890);  Population,  Part  i., 
p.  Ixxxiii. 

409 


Const  it  lit  ional  History  of  tfjc  American  People 

those  of  voters  was  a  novel  idea.  A  few  States 
had  adopted  it,  but  the  great  majority  had  followed 
a  different  principle.  The  Constitution  of  the 
United  States  was  itself  a  precedent  to  the  con- 
trary. A  member  of  the  House  of  Representa- 
tives must  attain  the  age  of  twenty-five  years.  If 
the  sovereign  people  were  to  select  a  man  of  the 
most  distinguished  talent — a  political  miracle,  like 
Pitt,  Jefferson,  or  Clay — he  could  not  be  eligible 
unless  he  was  of  this  age  and  had  been  a  citizen 
of  the  United  States  seven  years.  The  qualifica- 
tions which  entitled  him  to  vote  did  not  entitle 
him  to  a  seat  in  Congress.  For  this  reason  he 
was  required  to  be  a  citizen  seven  years  and  an 
inhabitant  of  the  State  for  which  he  was  chosen. 
Had  not  Franklin  and  Madison  made  this  Con- 
stitution? Were  the  fathers  of  the  Constitution 
in  ignorance  and  darkness }  The  constitutions  of 
the  States  controverted  the  idea  proposed,  Maine 
required  a  residence  of  five  years ;  so,  too,  Massa- 
chusetts, and  a  freehold  estate  in  addition ;  and 
New  Hampshire,  "  a  good  Democratic  State,"  re- 
quired a  qualification  of  seven  years'  residence. 

A  member  at  once  corrected  the  reference  to 
Maine,  saying  that  to  be  a  member  of  the  House 
in  that  State,  one  must  have  been  for  five  years  a 
citizen  of  the  United  States,  but  a  resident  of  the 
State  only  one — a  correction  typical  of  many  that 
have  to  be  made  in  the  speeches  of  delegates. 
But  in  making  a  State  constitution  it  is  the  argu- 
ment as  presented  that  affects  the  convention,  few 
of  whose  members  are   able  to  verify  from  their 

410 


The  Magnetic  Power  of  Rich  Resources 

own  knowledge  all  the  references  made  to  consti- 
tutional precedents.  Error  often  works  as  effec- 
tively as  truth  in  the  process  of  State- making. 
The  experience  of  Maine,  Vermont,  Ohio,  Vir- 
ginia, and  North  Carolina  invalidated  the  idea  that 
the  voter  and  the  Representative  should  have  the 
same  qualifications.  The  typical  member  of  a  con- 
stitutional convention  always  considers  his  own 
State  to  be  peculiarly  situated. 

The  greater  part  of  the  population  of  Louisiana 
was  new.  A  tide  of  immigration  was  flowing  into 
the  city  of  New  Orleans  more  rapidly  than  into 
any  city  of  New  Hampshire,  Virginia,  Rhode  Isl- 
and, Maine,  or  Texas.  The  resources  of  the  State 
invited  foreigners.  No  obstacles  should  be  thrown 
in  their  way,  but  the  government  of  the  State 
should  not  be  intrusted  to  them.  Identity  of  in- 
terest between  them  and  the  institutions  of  the 
commonwealth  should  be  secured.  The  property 
qualification  had  been  struck  out  as  useless  in  se- 
curing fidelity  in  the  exercise  of  the  suffrage,  on 
the  ground  that  identity  of  pecuniary  interests  is 
an  obsolete  notion.  It  followed  that  there  re- 
mained no  guarantee  derived  from  the  possession 
of  property,  and  that  the  man  without  property 
who  came  from  a  State  hostile  to  Louisiana  mioht 
participate  in  its  government.  The  only  remain- 
ing guarantees  were  attachment  and  sympathy,  and 
these  are  secured  only  by  residence.  Was  it  pos- 
sible for  a  man  who  had  passed  his  youth  in  Massa- 
chusetts, Virginia,  or  Rhode  Island  to  divest  him- 
self of  his  former  attachment  to  the  particular  in- 

411 


CoiislHittioiial  History  of  the  American  People 

stitutions  with  which  he  was  familiar,  and,  in  the 
short  period  of  six  months,  forget  the  influence 
of  his  education  and  his  prejudices  ?  Could  an 
inhabitant  of  Massachusetts  who  removed  to  Lou- 
isiana regard  slavery  in  its  true  light  ?  Would  he 
sympathize  with  the  perfect  tolerance  of  religions, 
so  remarkable  in  Louisiana,  which  was  not  the 
result  of  law,  but  of  public  opinion  ?  It  must  be 
presumed  that  the  attachments  which  he  had 
formed  in  his  former  home  would  preclude  him 
from  imbibing  at  once  a  relish  for  Louisiana  in- 
stitutions. If  he  resided  there  for  years  he  might 
at  last  acquire  it  and  lose  his  original  prejudices. 

The  reference  to  a  property  qualification  caused 
a  delegate  to  cite  a  case  in  the  House  of  Repre- 
sentatives, when  he  was  a  member,  as  proof  that 
the  qualification  was  not  only  odious  to  the  people 
of  the  State,  but  was  disregarded  by  them.  The 
seat  of  a  member  had  been  contested  on  the  ground 
that  he  did  not  possess  the  property  qualification — 
landed  estate  to  the  value  of  five  hundred  dollars 
— as  required  by  the  constitution  of  1812.  But  the 
committee  on  elections,  though  knowing  the  facts, 
would  not  take  notice  of  them,  neither  would  the 
House.  The  futility  of  insisting  on  the  qualifica- 
tion of  age  as  an  essential  matter  was  proved  in 
the  case  of  Henry  Clay  and  John  Randolph,  each 
of  whom  was  elected  to  the  Congress  of  the  United 
States  before  he  was  twenty- five.  Randolph  set- 
tled his  case  by  his  reply  to  the  inquiry  as  to  his 
age :  "  Go  and  ask  my  constituents."  When  the 
constitution  of  181 2  was  adopted,  Louisiana  had  not 

412 


Residential  QitaUfication  for  Office  in  Louisiana 

long  emerged  from  Spanish  and  French  dominion. 
It  was  then  supposed  that  some  unkind  feelings 
existed  among  classes  of  the  community.  Since 
that  time  the  population  have  become  a  united 
people ;  nor  was  there  any  danger  of  electing  a 
Representative  who  was  not  entirely  identified 
with  the  interests  of  the  State  by  residence.  Elec- 
tion was  evidence  of  popularity  and  public  confi- 
dence. There  was  no  likelihood  that  any  Aboli- 
tionist would  be  chosen.  None  would  sink  into 
the  affections  of  the  people,  for  none  could  con- 
ceal his  views.  Suppose  that  any  one  of  the  dis- 
tinguished men  of  the  country — Calhoun,  Tyler, 
or  Silas  Wrio^ht — were  to  remove  to  Louisiana,  who 
would  object  that  he  be  elevated  to  the  Legislat- 
ure of  the  State.''  By  a  vote  of  thirty -four  to 
thirty -one,  the  residence  was  fixed  at  four  years, 
and,  by  a  vote  of  thirty-nine  to  thirty-two,  the  time 
of  residence  of  the  naturalized  citizen  was  to  be 
computed  from  the  date  of  his  certificate.  One 
member,  though  favoring  the  extension  of  the  suf- 
frage, did  not  favor  the  Utopian  idea  that  there 
should  be  no  restriction  as  to  sex  and  color.  But 
before  this  was  discussed  several  members  ex- 
pressed their  ideas  of  the  respective  rights  of  na- 
tive and  naturalized  citizens. 

One  wished  an  equality  between  them.  If,  from 
reasons  of  sound  policy,  native-born  citizens  from 
other  States  were  required  to  remain  in  Louisi- 
ana five  years  before  they  could  be  eligible  to  pub- 
lic office,  at  least  the  same  restriction  ought  to  be 
prescribed  for  naturalized  foreigners.      A   native 

413 


Constitutional  History  of  tJjc  American  People 

citizen  is  always  subject  to  the  laws  of  the  country, 
and  is  obliged  to  bear  his  share  of  the  public  bur- 
dens. Not  so  the  foreigner.  He  may  exempt  him- 
self from  the  laws  and  remain  under  those  of  his 
own  country.  In  the  mean  time  he  might  make 
his  declaration  of  becoming  a  citizen,  and  having 
at  his  convenience  gone  through  all  the  forms  of 
naturalization,  at  once  become  eligible  to  office. 
Meanwhile  a  citizen  of  Mississippi  coming  to 
Louisiana  was  compelled  to  work  on  the  public 
roads  and  perform  similar  duties  during  the  time 
he  was  acquiring  a  lawful  residence.  A  foreigner 
who  had  first  arrived  in  another  State  and  was 
naturalized  there,  was  placed  from  the  date  of  his 
naturalization  on  an  equality  with  the  native-born 
citizen  of  that  State.  Was  it  not  unjust  that  citi- 
zens of  other  States  must  be  disfranchised  two 
years  because  they  chose  to  emigrate  to  Louisi- 
ana ?  The  State  had  become  rich  and  powerful 
because  of  immigration.  For  a  long  time  its  prop- 
erty qualifications  retarded  its  progress,  and  Ala- 
bama, Mississippi,  Ohio,  Indiana,  and  Illinois — ad- 
mitted long  after  Louisiana — 'had  far  outstripped 
it  in  the  race  of  prosperity  and  population.  The 
constitution  of  1812,  and  the  laws  made  under  it,  if 
not  the  sole  cause  of  this  result,  had  certainly  not 
been  as  conducive  to  progress  as  the  soil,  the  cli- 
mate, and  the  commercial  advantages  of  its  great 
city.  Moreover,  there  was  reason  for  the  pro- 
posed restriction.  Men  will  not  take  residence  in 
a  State  whose  laws  are  an  invidious  distinction 
against  their  own   interests.      Immigrants  would 

414 


The  Uni'versality  of  Citi{enship 

prefer  Texas  to  Louisiana.  For  thirty  years,  under 
the  old  constitution,  the  people  of  Louisiana  had 
admitted  citizens  from  any  State  to  all  the  rights 
of  freemen  after  a  residence  of  twelve  months. 
The  Constitution  of  the  United  States,  in  pre- 
scribins:  that  the  citizens  of  each  State  should 
have  all  the  rights,  privileges,  and  advantages  of 
citizens  of  the  other  States,  indicated  the  princi- 
ple which  Louisiana  ought  to  follow. 

The  government  of  the  United  States  was  a 
government  of  one  country,  and  therefore  every 
citizen  of  the  State  should  feel  as  much  at  home 
in  one  State  as  another.  The  principle  of  requir- 
ino:  Ions:  residence  was  erroneous,  for  it  was  found- 
ed  on  an  idea  of  exclusion,  contrary  to  the  general 
welfare.  Whenever  a  man  proved  by  sufficient 
residence  that  he  was  identified  with  the  interests 
of  a  State,  there  was  no  reason  why  he  should  be 
denied  the  rights  of  citizenship.  Louisiana  should 
accord  them  to  such  a  citizen  because  every  other 
State  in  the  Union  accorded  them  to  the  citizen 
of  Louisiana  after  a  similar  residence.  Of  the 
Southern  States,  South  Carolina  required,  in  ad- 
dition to  the  residence  of  two  years,  a  freehold 
estate  of  fifty  acres  of  land,  and  the  payment  of 
a  tax  equal  to  three  shillings  sterling.  Some 
States  required  a  residence  of  but  three  months. 
A  man  should  not  be  deprived  of  political  rights 
simply  because  he  moved  to  Louisiana.  He  had 
been  a  citizen  of  an  equal  State,  and  perhaps  was 
the  descendant  of  one  who,  in  the  field  or  the 
Senate,  had  done  much  for  his  country.     He  was 

415 


Const Hutional  History  of  the  American  Teople 

accustomed  from  infancy  to  love  the  whole  coun- 
try and  its  institutions,  and  was  now  interested  to 
concentrate  that  affection  on  Louisiana,  simply  be- 
cause he  had  located  there.  His  attachment  to 
the  whole  country  being  as  great  as  any  man's, 
was  he  less  capable  of  performing  the  duties  of 
citizenship  than  one  who  had  long  resided  in  Lou- 
isiana? His  conduct  depended  upon  his  education, 
but  the  means  of  education  in  other  States  were 
equal  to  those  in  Louisiana. 

The  extremely  fertile  lands  and  genial  climate 
of  Louisiana  attracted  rich  planters  from  Missis- 
sippi, Alabama,  and  the  Carolinas,  with  their  fam- 
ilies and  their  slaves.  There  were  many  such  in 
the  northwestern  portions  of  the  State ;  many 
more  would  come  and  avail  themselves  of  these 
advantages,  if  the  constitution  and  laws  of  the 
State  invited  them.  The  greater  number  came 
without  means,  but  with  moral  and  intellectual 
capital  to  use  for  the  welfare  of  the  State.  They 
were  a  most  valuable  acquisition.  The  agriculture 
of  the  State  was  in  its  infancy;  the  sugar  and  cotton 
lands  were  far  from  being  all  occupied.  Compared 
with  the  vast  resources  of  the  State,  its  production 
of  provisions  was  slight.  Its  soil  and  climate  were 
adapted  to  the  production  of  many  articles  which 
had  not  yet  received  attention — such  as  fruits,  silk, 
wine,  and  oil.  The  State  had  scarcely  yet  made  a 
ben^inninfy  in  manufactures.  Soon  its  commerce 
must  be  the  first  in  the  Union,  but  it  was  now 
carried  on  almost  exclusively  by  the  citizens  of 
other  States.      Population  should  be  courted,  not 

416 


The  Commercial  Importance  of  New  Orleans 

restricted  by  constitutional  provisions.  If  the  rich 
immigrated  with  their  slaves,  and  settled  and  im- 
proved the  lands  of  the  commonwealth,  sound 
political  principle  required  that  they  should  have 
a  voice  in  selecting  the  officers  of  government 
whose  action  was  to  regulate  their  property. 

New  Orleans  was  the  great  point  of  connection 
with  North  America,  Europe,  and  the  Southern 
islands.  It  was  true  statesmanship,  therefore,  to 
further,  by  every  possible  means,  the  prosperity 
marked  out  by  the  opportunities  of  this  commer- 
cial centre.  But  some  of  the  members  had  sug- 
gested that  two  years'  residence  should  be  re- 
quired as  a  guarantee  against  the  Abolitionism 
with  which  new-comers  might  be  imbued.  A  year 
was  time  enough  to  enable  a  man's  neighbor  to 
change  his  views  on  this  subject,  and  to  guard 
against  them  if  they  were  dangerous  to  the  State. 
It  was  sufficient  to  enable  the  new-comer  to  see 
that  the  well-regulated  system  of  slavery  in  Louisi- 
ana was  indispensable  to  the  slave-owners,  to  the 
slaves,  and  to  the  prosperity  of  the  State.  Every 
man  capable  of  taking  a  correct  view  of  civil  soci- 
ety would  wish  to  see  a  million  instead  of  three 
hundred  thousand  black  slaves  in  the  State.  If 
any  considerable  portion  of  the  population  was  de- 
prived of  its  political  rights,  it  would  be  degraded 
to  the  condition  of  the  slave,  and  the  evil  of  sla- 
very would  be  made  dangerous  by  exciting  against 
it  the  sympathy  of  a  portion  of  the  whites.  If  every 
freeman  in  the  State  was  elevated  to  an  equal  par- 
ticipation in  its  government,  and  a  broad  political 
I. — DD  417 


Constitutional  Histojy  of  tijc  American  People 

distinction  was  made  between  him  and  the  slave, 
"from  the  united  souls  of  freedom  a  wall  of  fire 
would  be  kindled  around  the  State  and  its  insti- 
tutions against  the  diabolical  machinations  of  Abo- 
litionism." 

Before  debating  the  compromise,  that  the  resi- 
dence of  the  naturalized  citizen  should  date  from 
the  time  of  receiving  his  naturalization  certificate, 
whether  in  Louisiana  or  elsewhere,  which  practi- 
cally placed  him  upon  an  equality  with  the  native- 
born  citizen,  several  members  expressed  an  idea 
common  to  constitutional  conventions,  that  the 
State  was  the  sole  judge  of  whom  it  should  re- 
ceive and  whom  it  should  reject.  This  right  of 
final  decision  was  incident  to  the  nature  of  an 
American  commonwealth,  whose  people  in  con- 
vention assembled,  possessing  accurate  knowledge 
of  the  institutions  of  the  State,  should  define 
the  qualifications  of  all  who  sought  identification 
with  them.  It  is  upon  this  notion  that  the  idea 
of  State  sovereignty  rests,  and  upon  which  the 
decisions  of  State  and  national  courts  have  rested 
in  its  support. 

This  long  discussion  of  the  proposed  admis- 
sion of  foreigners  to  the  rights  of  citizenship  was 
only  a  review  of  American  history.  One  mem- 
ber interpreted  the  relations  between  Louisiana 
and  the  United  States  to  preclude  the  State  from 
imposing  invidious  distinctions  upon  the  citizens 
of  the  several  States.  A  citizen  of  Louisiana  was 
entitled  to  all  privileges  of  citizenship  whether  he 
was  naturalized  or  native-born.     A  State  had  no 

418 


Citizens  IVithoiU  Naturali{ation 

more  control  over  citizenship  than  over  the  na- 
tional prerogative  to  coin  money.  It  could  not 
impose  discriminating  disabilities  upon  natural- 
ized citizens.  If  a  citizen  of  Mississippi  was  eli- 
gible to  all  the  privileges  of  citizens  of  Louisi- 
ana, according  to  the  federal  Constitution,  how 
could  the  convention  impose  disabilities  ?  At 
the  time  when  Mississippi  was  admitted  to  the 
Union,  one  of  its  citizens,  who  had  never  gone 
through  the  usual  process  of  naturalization,  was 
elected  to  the  Legislature  from  the  district  to 
which  he  had  removed,  and  the  question  arose 
whether  he  was  a  citizen  of  the  United  States  and 
eligible  to  the  ofifice.  The  State  Senate  decided 
in  his  favor;  the  court  sustained  the  Senate,  and 
also  decided  that  all  the  inhabitants  of  the  Missis- 
sippi Territory  at  the  time  of  its  admission  into 
the  Union  became,  ipso  facio,Q\i\zQns  of  the  United 
States.  To  discriminate  against  naturalized  per- 
sons was  contrary  to  the  decision  of  the  federal 
court.*  This  and  other  decisions  fixed  the  princi- 
ple that  a  State  cannot  impose  greater  restrictions 
in  admitting  foreigners  to  naturalization  than  are 
imposed  under  the  act  of  Congress.  A  State  may 
require  qualifications,  and  some  new  States  had 
availed  themselves  of  that  construction  by  admit- 
ting foreigners  to  citizenship  upon  easier  terms. 

The  dogma  of  Native  -  Americanism  was  not 
new.  It  came  from  an  objectionable  source,  as- 
sociated in  the  opinion  of  the  people  of  Louisiana 

*  CoUett  vs.  Collett,  8  Dallas,  294. 
419 


Constitutional  History  of  ttjc  American  People 

with  everything  vile  and  degrading  in  politics.  It 
had  made  its  first  appearance  in  the  days  of  Feder- 
alism, and  had  produced  the  infamous  AHen  and 
Sedition  laws.  Conscious  of  weakness,  the  old 
Federal  party  enacted  these  laws  to  save  itself 
from  overthrow.  They  were  passed  for  the  pur- 
pose of  engendering  prejudice  and  creating  ani- 
mosities. They  became  a  leading  question  before 
the  country,  and  a  distinguished  statesman  of 
Democratic  principles,  of  whom  Louisiana  would 
ever  be  proud,  was  conspicuous  in  the  struggle. 
Perhaps  of  all  his  productions  his  arguments 
asrainst  these  laws  were  the  best.  Livinq;ston  was 
at  that  time  a  member  of  Congress  from  the  State 
of  New  York.  His  arguments  against  these  laws 
were  admirable  and  conclusive,  and  the  State  of 
Louisiana  should  obtain  a  copy,  have  it  elegantly 
bound,  and  deposited  in  its  archives  in  honor  of  its 
great  author.  The  opposition  to  these  laws  was 
the  rallying  point  of  the  Democratic  party.  In 
the  Legislature  of  Kentucky  prompt  and  decisive 
action  was  taken,  and  in  the  Legislature  of  Virginia 
resolutions  now  famous  were  introduced.  As 
soon  as  the  Democratic  party  came  into  power  the 
laws  were  repealed  and  the  persons  confined  under 
their  authority  set  at  liberty. 

The  principle  then  repudiated  had  been  revived 
later,  with  all  its  narrow  and  contracting  prejudices, 
in  Native  -  Americanism.  No  man — certainly  no 
Democrat — could  give  support  to  that  idea.  Again, 
the  i)rinciples  of  the  Alien  and  Sedition  laws  were 
proclaimed    during    the    administration   of   Madi- 

420 


hiaiivc- Americanism  in  the  Hartford  Convention 

son.  At  a  critical  period  a  convention  was  held  in 
a  little  village  in  New  England,  and  it  has  given 
immortality  to  the  place,  Hartford  otherwise 
would  have  never  been  heard  of.  At  this  meet- 
ing of  traitors  this  very  question  of  Native-Ameri- 
canism was  revived  and  brought  conspicuously  to 
light,  in  vital  and  abiding  antagonism  to  the  South, 
in  the  form  of  a  proposition  to  exclude  the  repre- 
sentation of  slaves,  and  Massachusetts  still  held  to 
the  idea. 

The  Louisiana  convention  was  in  session  dur- 
ing the  heisfht  of  the  excitement  over  the  "  re- 
annexation  "  of  Texas,  and  this  national  issue  was 
not  overlooked  in  the  debates.  Native-American- 
ism was  associated  in  men's  minds  with  opposi- 
tion to  annexation,  and  a  member  read  an  extract 
from  the  Sotithern  Quarterly  Review,  to  which  he 
said  the  author's  name  was  not  given,  "  but  from 
the  great  ability  with  which  the  article  was  written 
he  presumed  it  was  from  the  pen  of  a  distin- 
guished gentleman.  Professor  Everett."*  The 
article  discussed  annexation,  and  declared  that  it 
would  produce  dissension.  In  like  spirit,  the 
Hartford  convention  had  declared  that  slave  repre- 
sentation would  produce  dissension.  It  had  pro- 
posed amendments  to  the  Constitution — such  as 
restricting  Congress  from  admitting  new  States 
without  the  consent  of  two -thirds  of  the  exist- 
ing   States ;    the    withdrawal    of    the    representa- 

*  Southern  Quarterly  Review,  October,  1844,  Art.  ix.,  "  The 
Annexation  of  Texas,"  pp.  483-520.  There  is  no  evidence  in  the 
article  that  Everett  was  its  author. 

421 


Const  if  lit  ioiial  His/o/y  of  the  American  People 

tion  allowed  to  the  slave- holding  States  based 
upon  the  slave  population  ;  the  exclusion  of  aliens 
from  office  and  from  the  privileges  of  citizenship, 
except  after  a  residence  of  twenty-one  years ;  one 
term  for  the  President,  and  that  the  office  should 
not  be  filled  twice  from  the  same  State.  These 
were  proposed  by  the  Legislature  of  Connecticut 
to  the  other  States  of  the  Union,  but  met  with 
no  favor.*  Was  not  this  extract  in  the  spirit 
of  the  Alien  and  Sedition  \a\\s}  Did"  it  not  re- 
vive and  blend  new  elements  of  political  strife 
and  endanger  the  peace  and  safety  of  the  Union.'* 
It  had  met  with  no  favor  in  1814;  it  would  meet 
with  no  favor  in  1845.  ^^  these  doctrines  there 
was  a  design  to  revolutionize  the  whole  country 
and  lio^ht  the  torch  of  civil  war.  It  was  the  Hart- 
ford  convention,  sanctioning  the  federal  doctrines 
of  1797,  and  again  proclaiming  federal  principles, 
which,  when  originally  brought  out,  proved  so  dis- 
astrous to  the  party  that  espoused  them.  These 
were  the  principles  which  had  given  rise  to  the 
Native- American  party — the  old  Federal  party 
under  a  new  guise.  Defeated  in  1800,  and  meet- 
ing with  a  succession  of  disasters,  the  Federal 
party  then  revived  the  doctrines  of  1797,  and  made 
war    upon    our    institutions.       The    doctrines    of 

*  See  the  Proceedings  of  a  Convention  of  Delegates  from  the 
States  of  Massachusetts,  Connecticut,  and  Rhode  Island  ;  the 
Counties  of  Cheshire  and  Grafton,  in  the  State  of  New  Hamp- 
shire; and  the  County  of  Windham,  in  the  State  of  Vermont; 
Convened  at  Hartford,  in  the  State  of  Connecticut,  December 
15,  1814.  Third  Edition.  Corrected  and  Improved.  Boston: 
Printed  and  Published  by  Wells  &  Lilly.     1815.     32  pp. 

422 


Liberal  Principles  of  Our  Early  Statesmen 

the  Native  -  American  party  were  older  than  the 
federal  Constitution.  The  Madison  papers  showed 
that  this  policy,  to  exclude  persons  of  foreign  birth 
from  participating  in  the  government  of  the  coun- 
try, was  broached  and  insisted  upon  in  the  Phila- 
delphia convention  of  1787.*  Washington,  Madi- 
son, Franklin,  and  Wilson  held  liberal  opinions, 
and  were  opposed  to  restrictions  that  would  ex- 
clude their  fellow-men  from  citizenship. 

The  opinions  of  Franklin,  in  particular,  were 
practical,  "because  that  distinguished  man  had 
spent  a  considerable  time  in  Europe  and  had 
the  opportunity  of  forming  a  correct  judgment." 
During  a  period  of  over  sixty  years,  although 
several  States  had  formed  and  modified  their 
system  of  government,  not  one  had  incorporated 
the  principle  of  placing  the  naturalized  citizen 
in  a  position  inferior  to  that  of  the  native-born. 
With  the  exception  of  Georgia  and  Maine,  not  a 
State  had  adopted  this  illiberal  distinction.  The 
constitution  of  Georgia  of  1798  had  special  refer- 
ence to  the  peculiar  geographical  position  of  that 
State,  being  then  contiguous  to  the  dominions  of 
Spain.  But  it  did  not  contain  a  Native- Ameri- 
can clause.  The  Maine  convention  had  not  dis- 
cussed the  proposition,  but  required  the  Governor 
to  be  a  native-born  citizen  of  the  United  States. 
The  weight  of  authority  in  America  was  against 
the  incorporation  of  a  Native-American  clause  in 
a  State  constitution.     It  was  the  intention  of  the 

*  Elliot,  Vol.  v.,  pp.  120,  143,  378,  398,  411,  560. 

423 


Constitutional  History  of  the  American  Peopte 

federal  Constitution  that  the  States  should  impose 
no  greater  restrictions  than  were  imposed  by  the 
laws  of  Congress.  All  the  eminent  men  of  the 
formative  period  of  American  history  were  op- 
posed to  the  spirit  of  Native- Americanism.  Of 
these  the  most  illustrious  were  Wilson  and  Madi- 
son. Conceding  that  "  the  services  of  Madison 
were  most  eminent,  next  to  him  no  one  had  im- 
pressed a  stronger  mark  of  his  mind  upon  the 
Constitution  than  Wilson,"*  a  foreigner  by  birth, 
whose  very  name  was  an  illustrious  refutation  of 
the  fallacy  of  the  doctrine.  Nor  were  all  the 
members  of  the  Whig  party  blind  to  the  folly  of 
the  crusade  against  naturalized  citizens.! 

Like  the  constitution  of  Massachusetts  of  1 780, 
that  of  Louisiana  in  181 2  required  of  the  Govern- 
or a  property  qualification,  in  the  form  of  landed 
estate  of  the  value  of  five  thousand  dollars.  The 
unpopularity  of  this  qualification  was  illustrated 
in  the  election  of  Governor  Mouton,  in  1844,  who 

*  This  is  one  of  the  earliest  tributes  to  this  eminent  jurist. 

t  At  this  point  in  the  discussion  a  member  of  the  conven- 
tion read  an  extract  from  the  Louisville  Weekly  Journal,  whose 
editor,  he  said,  was  a  distinguished  writer  and  a  personal  and 
political  friend  of  the  late  Whig  candidate  for  the  Presidency, 
and  yet  he  pronounced  himself  decidedly  against  the  movement 
of  his  party  to  organize  under  a  new  name  and  upon  the  principle 
of  hostility  to  foreigners.  The  article  was  written  immediately 
after  the  defeat  of  Clay,  and  might  be  considered  a  sort  of  fu- 
neral oration  or  explanation  of  the  cause  which  prevented  the 
Whigs  from  making  a  better  fight.  Another  extract,  from  the 
New  York  Tribune,  to  the  same  effect,  was  read,  and  the  member 
concluded  his  appeal  for  the  equal  rights  of  the  native  and  the 
naturalized  citizens  of  the  country  by  citing  the  distinguished 
services  of  foreigners  in  the  war  for  American  independence. 

424 


Slavery  Permeating  tbe  IVbole  Political  Body 

was  inaugurated  without  inquiry  as  to  his  property. 
Even  if  he  had  lacked  the  quahfication,  his  popu- 
larity would  have  insured  his  election.  In  like 
manner,  and  agreeable  to  public  opinion,  the  relig- 
ious and  property  qualifications  for  voters  and 
office-holders  disappeared  in  practice  before  they 
vanished  from  the  State  constitutions. 

It  was  impossible  to  discuss  any  phase  of  the  fran- 
chise without  involving  the  institution  of  slavery, 
and  Judah  P.  Benjamin,  a  member  from  Orleans, 
afterwards  foremost  in  secession  and  in  the  forma- 
tion of  the  Southern  Confederacy,  now  warned  his 
colleagues  that  they  ought  not  to  wrangle  over 
distinctions  between  the  rights  of  naturalized  and 
native-born  citizens,  for  a  subject  of  vital  impor- 
tance, which  ought  to  produce  unanimity  in  their 
councils,  demanded  their  attention,  one  that  would 
obliterate  all  distinctions  between  Whio^s  and 
Democrats,  and  cause  the  whole  South  to  form  a 
single  political  party.  The  signs  of  the  times 
plainly  indicated  that  the  peculiar  institution  of 
the  slave-holding  States  must  be  guarded  from  an 
insidious  foe  —  the  Abolitionist.  The  course  of 
events  was  proving  that  the  Southern  States 
must  maintain  their  rights,  rely  upon  themselves, 
and  not  upon  the  stipulations  in  the  federal  com- 
pact. 

On  Friday,  the  24th,  the  right  to  vote  was  limit- 
ed to  free  white  male  citizens  of  the  United  States. 
In  the  slave -holding  States  the  tendency  was  to 
require  a  longer  residence  than  was  customary  in 
the  free  States.     The  whole  attitude  of  slave-hold- 

425 


Constitutional  History  of  the  American  Pcvple 

ing  communities  was  essentially  unfriendly  to  new- 
comers.* These  commonwealths  wished  to  be  ex- 
clusive, and  their  exclusiveness  bred  a  political 
conceit  which  the  course  of  politics  and  industry 
in  America  did  not  warrant.  In  this  respect 
the  restrictions  on  the  suffrage,  which  for  a  long 
time  were  in  force  in  slave-holding  communities, 
continued  the  prejudices  of  colonial  times.  The 
high  wall  of  political  exclusiveness  thus  erected 
around  the  slave-holding  commonwealths  practi- 
cally deprived  them  of  the  energizing  population 
which  was  pouring  into  the  free  States.  In  no 
part  of  the  world  was  there  ever  a  more  ardent  de- 
fence of  the  doctrine  of  political  equality  among 
men  than  that  heard  from  time  to  time  in  con- 
stitutional conventions  of  the  slave-holding  States. 
But  in  none  did  equality  include  any  but  the  white, 
the  dominant  race.  In  Northern  conventions  there 
was  less  said  of  the  necessity  for  long  residence  in 
order  to  enable  the  new-comer  to  become  familiar 
with  the  essential  interests  of  the  State.  The 
homogeneous  population  of  the  North  practically 
permitted  a  shorter  residence  for  the  voter,  while 
the  heterogeneous  population  of  the  South,  as  its 
needs    were    interpreted   by  Southern   statesmen, 

*  See  the  speeches  on  citizenship  and  immigration  in  The  His- 
tory and  Debates  of  the  Convention  of  the  People  of  Alabama, 
Begun  and  Held  in  the  City  of  Montgomery  on  the  Seventh  Day 
of  January,  1861  ;  in  which  is  preserved  the  Speeches  of  the  Se- 
cret Sessions,  and  many  valuable  Papers.  By  William  Smith, 
one  of  the  Delegates  from  Tuscaloosa.  Montgomery :  White, 
Pfister  &  Co.  Tuscaloosa:  D.  Woodruflf.  Atlanta:  Wood,  Hon- 
Icitcr,  Rice  &  Co.     1861. 

426 


Cosmopolitan  Characteristics  of  Louisiana 

made  a  longer  period  necessary.  Thus,  directly 
and  indirectly,  slavery  excluded  immigration,  and 
had  the  domestic  effect  of  emphasizing  in  an 
undue  degree  the  importance  of  the  peculiar  insti- 
tution.* 

In  Louisiana  political  exclusiveness  was  less  in- 
tense than  in  any  other  slave  -  holding  common- 
wealth, because  it  was  in  part  obliterated  by  the 
cosmopolitan  character  of  the  State.  Its  population 
sprang  from  different  races — the  African,  the  Span- 
ish, the  French,  the  English,  the  American.  New 
Orleans  was  the  commercial  capital  of  the  South. 
Therefore,  in  determining  the  time  required  for 
gaining  a  residence  in  the  State,  this  cosmopolitan 
character  of  its  population  was  a  determining  factor. 
The  discussion  of  this  qualification  was  not  wide- 
ly different  from  that  in  the  Northwestern  States 
in  a  similar  economic  situation.  The  State  stood 
in  need  of  population ;  it  had  immense  resources, 
which  could  be  fully  developed  only  by  a  great 
number  of  people.  Therefore,  it  ought  to  encour- 
age immigration.  Discouraged  immigrants  would 
go  elsewhere — to  Arkansas  or  Texas.  If  a  liberal 
policy  was  pursued  those  possessing  ability  and 
industry  would  come  to  the  State,  and  it  would 
then  grow  greater  every  day  in  wealth  and  impor- 
tance. Its  commercial  domain  would  then  extend 
from  the  Alleghany  Mountains  to  the  Gulf  of  Mex- 
ico, from  the  Gulf  to  the  remote  parts  of  the  earth. 
If  freely  encouraged  to  locate  in  Louisiana,  immi- 

*  See  Calhoun's  letter  to  King,  August  12,  1844. 
427 


Constitntioiial  History  of  the  American  People 

grants  would  there  become  rich   and  prosperous, 
and  in  times  of  danger  strengthen  the  State.* 

These  Hberal  notions,  however,  were  highly  ob- 
jectionable to  many  who  wished  the  control  of  the 
State  to  be  wholly  in  the  hands  of  its  native-born 
population  and  its  oldest  and  richest  families.  As 
the  debate  proceeded,  the  constitutions  of  other 
States  were  freely  quoted,  particularly  those  of 
Iowa,t  Alabama,:]:  Michigan, §  Illinois, ||  and  Ar- 
kansas,^ whose  provisions  defining  the  elective 
franchise  were  regarded  as  expressing  the  liberal 
spirit  of  the  American  people.  One  member,  in 
referrinor  to  these,  said  that  he  did  not  attach  much 
authority  to  the  eighteenth-century  constitutions  of 
the  confederacy.  They  had  been  framed  at  a  pe- 
riod when  man's  capacity  for  self-government  was 
an  unsolved  problem,  when  our  ablest  statesmen 
were  doubtful  of  the  result  of  our  great  political 
experiment.  Among  those,  however,  there  was 
one  illustrious  exception,  "  a  man  whose  intellect 
towered  above  the  age  in  which  he  lived,  and  min- 
gled with  the  events  of  the  coming  generation." 
Jefferson,  earlier  than  any  of  his  contemporaries, 
had  seen  the  successful  issue  of  our  republican  in- 
stitutions, and  in  his  philosophical  writings  on  gov- 
ernment had  left  a  priceless  heritage  to  the  young- 
er statesmen  of  America.  The  doctrines  of  an 
exclusive  suffrage  had  long  been  exploded.     They 

*  These  ideas  are  almost  identical  with  those  expressed  in 
Illinois,  lovvH,  Michigan,  and  Wisconsin  in  1845-50.  See  the 
constitutional  conventions  of  these  States  during  these  years. 

t  1846.  I  1819.  §  1837.  [I  1818.  %  1836. 

428 


The  Teachings  of  Franklin  Predominate 

were  not  Jeffersonian  in  their  character.  In  proof 
of  this,  eight  States  required  less  than  one  year's 
residence;  seventeen,  a  residence  of  one  year;  and 
but  one  State,  South  Carolina,  a  residence  of  two 
years — and  the  constitution  of  South  Carolina  was 
framed  in  1 790.*  Some  thought  because  the  prop- 
erty qualification  was  to  be  stricken  out  that  some 
equivalent  restriction  should  be  adopted.  The 
people  dem.anded  the  abandonment  of  such  a  re- 
striction, and  believed  in  the  logic  and  philosophy 
of  Franklin — that  if  property  is  made  the  basis  of 
the  suffrage,  then  property,  not  man,  votes.  Gov- 
ernment would  then  be  determined  by  "  the  inert 
mass  of  unthinking  matter  which  exercises  politi- 
cal influence." 

Had  not  the  folly  of  depending  upon  a  long 
residence  for  securing  a  conserving  electorate  been 
proved  in  Louisiana  at  the  time  of  the  battle  of 
New  Orleans.?  Nearly  nine-tenths  of  the  Orleans 
battalion  were  not  voters,  under  the  restrictive 
clause  of  the  constitution  of  181 2. f  The  soldiers 
who  had  driven  back  the  British  army  were  not 
electors  ;  and  it  was  folly  to  suppose  that  the  State 
would  be  adequately  defended  merely  by  prescrib- 
ing a  long  period  in  which  its  inhabitants  might 
gain  a  residence. 

There  was  another  reason  why  the  franchise 
should  be  liberal.  The  more  restricted  a  govern- 
ment, the  more  is  political  power  confined  in  the 


*  For  the  provisions  in  the  State  constitutions  of  1776-1800, 
see  Chaps,  ii.,  iii. ;  for  those  of  1800- 1850,  see  Vol.  ii.,  Chap.  xv. 
t  See  p.  395  as  to  regiments  of  free  persons  of  color. 

429 


Cousin  lit  ioihi!  History  of  tJje  American  People 

hands  of  the  few.  Confined  to  only  a  few,  the  ex- 
pense would  be  large ;  but  if  this  power  was  con- 
fined to  one-fifteenth,  or  in  the  hands,  say,  of  a 
dozen  men,  it  would  be  found  that  these  would 
secure  enormous  salaries,  and  patronage  would  be 
appropriated  so  as  to  perpetuate  power.  In  Eng- 
land, by  the  right  of  primogeniture,  political  power 
was  retained  in  the  hands  of  the  few.  Public  func- 
tionaries there  received  large  salaries.  Much  mon- 
ey was  spent  to  keep  up  the  state  of  the  bishops. 
The  national  debt  was  increasing.  In  a  govern- 
ment of  property-holders,  as  in  England,  property 
was  the  chief  object  of  protection.  Although  the 
country  was  under  as  thorough  cultivation  as  a 
o-arden,  its  resources  were  monopolized  by  the  few, 
while  the  many  were  without  the  necessaries  of 
life.  If  protection  to  property  were  the  measure 
of  government,  despotic  governments  were  fre- 
quently to  be  commended,  but  in  time  of  war  the 
freeholders  were  not  sufficient  in  number  to  pro- 
tect all  the  interests  of  the  State. 


CHAPTER  XIV 
THE   BASIS    OF    REPRESENTATION 

In  Louisiana  the  laboring  classes  formed  the 
greater  part  of  the  militia.  Though  they  performed 
all  the  services  of  the  citizen,  they  were  denied  a 
voice  at  the  polls.  From  the  poorer  classes  no 
danger  was  to  be  apprehended ;  they  had  always 
been  the  protectors  of  property ;  they  demanded 
but  a  fair  participation  in  the  privileges  of  citizen- 
ship. Property  is  power.  It  always  exercises  a 
sufficient  control  over  the  poor;  therefore,  it  was 
unnecessary  to  deny  them  a  voice  in  the  adminis- 
tration because  of  their  poverty.  It  would  place 
the  poorer  whites  on  an  equality  with  slaves. 

The  Virginia  convention  of  1829,  though  con- 
sisting of  men  as  talented  as  any  who  had  assem- 
bled since  the  formation  of  the  federal  Constitu- 
tion, were  afraid  of  making  popular  reforms.  They 
were  so  wedded  to  aristocracy  that  they  made  as 
few  modifications  as  possible.  Indeed,  their  con- 
servatism was  comportable  only  with  the  conserva- 
tism of  Governor  Berkeley,  who,  in  the  earlier  part 
of  the  colonial  history  of  Virginia,  in  speaking  of 
the  New  England  States,  and  of  the  desire  of  their 
people  for  public  education,  had  thanked  God  that 
there    were    neither    free    schools    nor    printing- 

431 


Constitutional  History  of  tljc  American  People 

presses  within  his  colony,  as  learning  created  dis- 
satisfaction and  disputes,  which  the  printing-press 
promulgated.  Governor  Berkeley  was  not  the  last 
of  the  conservatives.  The  deference  to  property 
had  been  illustrated  in  the  Massachusetts  conven- 
tion of  1820,  and  in  the  New  York  convention  of 
the  following  year.*  Even  Madison  had  changed 
his  earlier  views.  In  the  federal  convention  of 
1787  he  had  said  that  "persons  and  property  be- 
ing both  essential  objects  of  government,  the  most 
that  either  can  claim  is  such  a  stricture  as  will 
have  a  reasonable  security  for  the  other." 

In  the  Virginia  convention,  twenty- two  years 
later,  he  said  that  "  It  cannot  be  expedient  to  raise 
a  republican  government  if  a  portion  of  society 
having  a  numerical  and  physical  force  be  excluded 
from  and  likely  to  be  turned  against  it,  and  which 
would  lead  to  a  standing  military  force  dangerous  to 
all  parties  and  to  liberty  itself."  Property  is  sufificient 
for  its  own  protection.  An  extension  of  the  suf- 
frage would  be  followed  by  a  reduction  of  public 
salaries.  If  a  property  qualification  were  required, 
it  must  be  graduated.  If  a  man  possessed  of  ten 
thousand  dollars  was  more  interested  in  the  defence 
of  the  State  than  one  who  has  not  a  dollar,  then  he 
who  owned  fifty  thousand  dollars  must  be  propor- 
tionally interested.  If  a  man  with  fifty  negroes 
had  one  vote,  then  he  who  owned  a  hundred  ought 
to  have  two. 

*  See  the  debates  in  these  two  conventions  for  an  exhaustive 
discussion  of  the  idea,  expressed  in  the  Massachusetts  convention 
by  Webster,  "The  basis  of  government  is  property." 

432 


Troperty  Qiialification  Detrimental  to  tfje  State 

The  value  of  the  constitutions  of  other  States  in 
the  Union  as  evidence  that  property  would  be  un- 
safe if  it  were  not  made  an  element  in  representa- 
tion, and  that  those  who  possessed  no  property 
would  be  dangerous  legislators,  was  deprecated  by 
some.  It  was  more  appropriate  to  refer  to  the 
contrary  experience  of  Louisiana.  There  property 
had  governed  exclusively.  The  State  had  become 
involved  in  heavy  debts.  The  extravagant  appro- 
priations made  by  the  Legislature  had  not  been 
for  the  benefit  of  the  poor,  but  of  the  rich.  The 
experience  of  Louisiana  attested  the  extravagance 
and  follies  which  followed  the  administration  of  a 
government  founded  on  the  property  basis. 

The  ultra-conservative  element  in  the  conven- 
tion was  in  the  minority.  The  majority  of  its  mem- 
bers favored  an  extension  of  the  suffrage.  But  to 
what  degree  1  Would  not  a  law  for  the  registra- 
tion of  voters  prevent  the  election  frauds  for  which 
the  State  of  Louisiana  was  noted,  due  to  the  great 
number  of  persons  who  came  to  the  State  from 
other  commonwealths  and  from  Europe  ?  Some 
wished  the  rights  of  the  elector  unimpaired  so 
long  as  he  continued  to  be  a  house-keeper  in  the 
State  and  his  dwelling-house  was  actually  occupied 
by  a  member  of  his  family  during  his  absence. 

The  discussion  of  the  franchise  led  almost  im- 
perceptibly to  a  discussion  of  representation.  It 
should  be  uniform  ;  but  upon  what  basis  ?  A  del- 
egate from  Orleans  began  the  debate  for  which, 
among  constitutional  conventions,  this  one  is  dis- 
tinguished. Property  should  be  the  basis  of  rep- 
I.— EE  433 


Constitutional  Histoiy  of  the  American  People 

resentation ;  but  the  convention  had  rejected  this 
basis.  Next  to  property,  the  best  basis  was  the 
quaHfied  voter.  There  had  been  some  unwilling- 
ness to  adopt  the  basis  of  manhood  suffrage.  Jf 
neither  property  nor  manhood  suffrage  was  to  be 
the  basis  adopted,  it  should  be  the  free  white  popu- 
lation of  the  State.  The  committee  on  the  fran- 
chise had  reported  in  favor  of  the  federal  basis. 
This  was  arbitrary,  and,  if  established,  tended  to 
keep  up  dissensions  in  the  State.  It  was  well 
known,  as  was  said  in  the  Virginia  convention  of 
1830,  that  the  "federal  basis  was  a  departure  from 
principle,  insisted  on  by  the  Southern  States  as  a 
guarantee,  and  consented  to  by  the  Northern  States 
only  as  a  compromise,  without  which  the  union  of 
the  States  had  been  impossible.  Its  design  was  to 
preserve  the  balance  of  power  and  to  protect  the 
Southern  States  from  encroachments  by  the  North- 
ern States."  The  local  situation  of  the  people  of 
Louisiana  made  it  unnecessary  to  adopt  that  basis, 
as  slave-holders  comprised  the  greater  part  of  the 
white  population.  It  had  been  said  that  if  this  basis 
was  rejected,  Louisiana  would  repudiate  its  essen- 
tial institutions.  But  there  was  no  analogy  between 
the  basis  of  representation  in  a  commonwealth  and 
in  the  United  States.  In  a  commonwealth  where 
all  submitted  to  the  same  laws,  enjoyed  the  same 
franchise,  held  the  same  kind  of  property,  it  was 
idle  to  adopt  an  arbitrary  system  of  apportionment, 
which  was  not  only  manifestly  unjust,  but  repug- 
nant to  the  social  system  of  the  State.  Granted 
that  the  federal  basis  was  proper  for  the  Union, 

434 


The  South  and  Its  Heterogeneous  Population 

there  was  a  peculiar  impropriety  in  its  adoption  in 
the  State,  for  it  would  expose  slavery  to  the  very 
risk  to  guard  against  which  this  basis  had  been 
insisted  upon  as  essential  at  the  time  of  the  forma- 
tion of  the  federal  compact.  In  its  local  relations 
a  State  could  find  no  necessity  for  adopting  it. 
Practically,  its  adoption  would  result  in  great  in- 
justice. It  would  give  to  a  few  districts  a  dispro- 
portional  representation,  and  enable  them  to  con- 
trol the  whole  Assembly.  The  western  portion  of 
the  State  was  the  richest  in  agricultural  resources; 
it  was  fast  increasing  in  slave  population,  and  con- 
sequently its  white  population  was  proportionally 
small.  Not  a  planter  removed  thither  who  did  not 
carry  with  him  from  fifteen  to  twenty  slaves,  which 
was  the  average  ownership  in  that  part  of  the 
State.  The  comparative  increase  of  white  and 
slave  population  there  was  as  one  to  seven ;  in 
Southern  Louisiana  the  slave  population  was  de- 
creasing, especially  in  the  city  of  New  Orleans, 
where,  in  a  population  of  one  hundred  and  ten 
thousand  whites,  there  were  but  eighteen  thousand 
slaves,  making  a  proportion  of  six  whites  to  one 
slave.  From  the  city  of  New  Orleans  to  Baton 
Rouge  the  increase  of  the  laboring  white  popula- 
tion was  great,  which  accounted  for  the  decrease 
in  the  number  of  slaves  in  that  region,  and  their 
removal  to  the  western  portion  of  the  State,  or 
wherever  their  labor  was  more  productive.  If  one 
of  the  new  parishes  in  Western  Louisiana,  with  an 
area  of  thirty  to  fifty  square  miles,  was  made  a  rep- 
resentative  district,  and  to  its  white   population 

435 


Canstitutional  History  of  the  American  People 

three-fifths  of  its  slaves  were  added,  it  was  certain 
that,  as  compared  with  one  of  the  river  parishes  in 
southern  Louisiana,  whose  white  population  was 
in  the  ratio  of  two  to  one  of  its  slave  population, 
the  southern  district  would  have  less  political 
power  than  the  western,  having  a  ratio  of  fifteen 
slaves  to  one  white  man.  A  more  arbitrary  system 
of  representation  could  not  be  devised  to  transfer 
the  political  power  of  the  State  into  the  hands  of 
a  few  persons  residing  in  favored  regions  of  the 
State. 

Furthermore,  if  each  district  was  to  have  one 
Representative,  there  would  be  a  constant  en- 
couraoiement  to  create  new  districts.  In  the  older 
portions  of  the  State  land  was  less  productive 
and  the  people  less  able  to  incur  heavy  expenses 
by  the  formation  of  new  districts.  In  the  west- 
ern part  land  was  of  extraordinary  fertility ;  the 
population  there  could  easily  subdivide  into  new 
districts  and  bear  the  burdens  of  separate,  paro- 
chial organization.  The  more  numerous  popula- 
tion in  the  east  would  be  overbalanced  by  the 
number  of  parishes  in  the  west.  Political  power 
would  reside  in  that  portion  of  the  State  which 
had  been  subdivided  into  many  parishes  expressly 
to  produce  preponderance.  Why  should  slaves 
be  represented  and  other  property  excluded  }  If 
slaves,  as  property,  were  to  be  represented,  why  not 
include  houses  and  land }  If  the  owner  of  a  slave 
was  to  be  invested  with  greater  political  power 
by  reason  of  that  possession,  why  should  not  a 
capitalist  enjoy  the  extension  of   political   power 

436 


Where  the  Federal  Number  Failed 

through   the  representation  of  his  capital  ?     All 
property  should  be  treated  alike. 

It  seems  strange,  perhaps,  that  the  defenders  of 
slavery  should  have  admitted  that  the  slavery 
compromise  of  the  national  Constitution  was  a 
departure  from  principle.  It  might  seem  that 
they  would  have  claimed  it  as  an  illustration  of 
the  true  principle  of  representative  government. 
Because  the  federal  basis,  when  men  sought  to 
apply  it  to  the  apportionment  of  representation  in 
a  commonwealth,  proved  unmanageable,  it  was 
said  to  be  a  departure  from  principle.  Why,  in- 
quired a  delegate,  should  but  three-fifths  of  slave 
property,  instead  of  two-fifths  or  one-half  or  the 
whole  number,  constitute  the  basis  ?  Any  basis 
fixed  by  an  arbitrary  principle  was  revolting  to 
the  sense  of  justice.  It  was  with  bad  grace,  in- 
deed, that  those  who  declaimed  in  favor  of  the  in- 
estimable right  of  suffrage  for  every  white  male 
should  propose  a  basis  that  admitted  three-fifths 
of  the  slave  population,  and  put  them  on  an  equal 
footing  with  the  white  population,  and  by  so  much 
reduced  the  political  power  of  the  individual  elec- 
tors. 

As  the  debate  proceeded  it  was  discovered  that 
the  contending  powers  in  the  convention  were 
the  country  against  the  town — as  in  Virginia  in 
1830,  the  highlands  against  the  lowlands.  If  the 
white  basis  were  adopted,  the  advantage  would  lie 
with  the  towns ;  if  the  slave  basis,  with  the  coun- 
try. It  was  declared  that  the  adoption  of  the 
white  basis  involved  the  existence  of  the  agricult- 

437 


Constitutional  History  of  tlje  American  Teople 

ural  interests  of  the  State.  It  was  a  basis  proper 
enouG:h  for  a  community  whose  institutions  were 
dissimilar  to  those  of  Louisiana;  but  imperious 
necessity  there  demanded  that  slave  property, 
from  which  the  greatest  amount  of  revenue  was 
derived,  and  which  was  the  source  of  the  agricult- 
ural wealth  of  the  State,  should  be  considered  a 
part  of  the  basis  of  representation.  Because  of 
the  existence  of  that  species  of  property,  and  its 
function  in  agriculture,  the  white  population  of 
the  country  was  comparatively  less  than  the  white 
population  of  the  city;  but  the  population  of  the 
country  was  permanent,  and  essentially  attached 
to  the  soil  and  the  institutions  of  the  State. 
The  city  population  was  floating.  The  greatest 
interest  of  the  State,  that  upon  which  its  safety 
and  perpetuity  mainly  depended,  was  the  agricult- 
ural. Should  this  interest  be  sacrificed  }  Should 
the  country  be  a  victim  in  order  that  the  city 
mieht  control  the  destinies  of  the  State.'*  It 
would  be  impossible  to  adopt  a  perfectly  equitable 
basis.  New  Orleans  was  a  great  and  growing 
city,  whose  interests  were  disproportionate  to  those 
of  the  remainder  of  the  State.  It  was  filling  u}) 
with  all  kinds  of  people,  and  was  exposed  to  out- 
breaks and  commotions.  The  country  would  not 
be  justified  in  relinquishing  the  power  which  it 
had  wielded,  but  had  never  abused,  and  transfer- 
ring it  to  the  city.  The  country  was  free  from 
those  sudden  passions  which  pervert  and  carry 
men's  minds  to  fearful  extremities  ;  it  was  a  shield 
to   the   State,  guarding  it  from    sudden    assaults 

438 


Jefferson  Favors  the  Tiirsuit  of  Agriciiltiire 

and  preserving  it  from  the  insidious  schemes  of 
enemies  without  or  within.  Every  consideration 
of  sound  policy  dictated  that  the  country  should 
maintain  its  ascendency. 

Probably  it  was  not  known  to  the  delegate  who 
put  forth  these  ideas  that  they  have  the  authority 
of  Jefferson's  name ;  but  had  the  speaker  read  the 
nineteenth  query  in  Jefferson's  Notes  on  Virginia, 
he  would  have  felt  strengthened.  "  Those  who 
labor  in  the  earth,"  writes  Jefferson,  "are  the  chos- 
en people  of  God,  if  ever  He  had  a  chosen  people, 
whose  breasts  He  has  made  His  peculiar  deposit  for 
substantial  and  genuine  virtue.  It  is  the  focus  in 
which  He  keeps  alive  that  sacred  fire  which  other- 
wise might  escape  from  the  face  of  the  earth.  Cor- 
ruption of  morals  in  the  mass  of  cultivators  is  a 
phenomenon  of  which  no  age  nor  nation  has  fur- 
nished an  example.  *  *  *  Dependence  begets  sub- 
servience, and  venality  suffocates  the  germ  of  virtue 
and  prepares  for  it  tools  for  the  designs- of  ambi- 
tion. Thus,  the  natural  progress  and  consequence 
of  the  arts  have  sometimes  perhaps  been  retarded 
by  accidental  circumstances ;  but,  generally  speak- 
ing, the  proportion  which  the  aggregate  of  the 
other  classes  of  citizens  bears  in  any  State  to  that 
of  its  husbandmen  is  the  proportion  of  its  unsound 
to  its  healthy  parts,  and  is  a  good  enough  barom- 
eter whereby  to  measure  its  degree  of  corruption. 
While  we  have  land  on  which  to  labor,  then  let 
us  never  wish  to  see  our  citizens  occupied  at  the 
workshop  or  twirling  the  distaff.  Carpenters,  ma- 
sons, and  smiths  are  needed  in  husbandry,  but  for 

439 


Constitutional  History  of  the  American  People 

the  general  operations  of  manufacture  let  our 
workshops  remain  in  Europe.  It  is  better  to  carry 
provisions  and  materials  to  workmen  there  than 
bring  the  latter  to  the  provisions  and  materials,  and 
with  them  their  manners  and  principles.  The  loss 
by  the  transportation  of  commodities  across  the 
Atlantic  will  be  made  up  in  happiness  and  perma- 
nence of  government.  The  mobs  of  great  cities 
add  just  so  much  to  the  support  of  pure  govern- 
ment as  sores  add  to  the  strength  of  the  human 
body.  It  is  the  manners  and  spirit  of  the  people 
which  preserve  a  republic  in  vigor.  A  degeneracy 
in  this  is  a  canker  which  soon  eats  to  the  heart  of 
its  laws  and  constitutions." 

Among  the  dominating  political  ideas  in  Amer- 
ican history  few  have  received  wider  acceptation 
than  those  of  Jefferson  on  the  relative  worth  of 
agriculture  and  manufactures  in  the  evolution  of 
democracy.  Accepted  without  modification,  they 
would  have  held  America  in  a  purely  agricultural 
condition.  Agriculture  and  manufactures  togeth- 
er have  determined  the  evolution  of  our  institu- 
tions. With  agricultural  institutions  slavery  was 
identified ;  but  it  could  never  be  identified  with 
manufactures.  Varied  economic  interests  ulti- 
mately compelled  the  abolition  of  slavery.  The 
most  eloquent  defenders  of  slavery  were  fond  of 
describing  the  agricultural  condition  as  the  ideal 
state  of  society.  In  slave-holding  States  the  pro- 
portion of  slaves  to  the  white  population  was  al- 
ways smaller  in  cities  than  in  the  country.  This 
difference  was   analogous   to   that  which   existed 

440 


.  Congested  Tower  in  Large  Cities 

between  the  hio^hland  and  lowland  regions  of  slave 
States — as  in  Virginia,  Alabama,  Kentucky,  North 
Carolina,  and  Tennessee.  The  slave-holding  States 
steadily  and  successfully  resisted  all  efforts  to  in- 
troduce manufactures  among  them, and  as  steadily 
sought  to  maintain  an  agricultural  homogeneity, 
which,  it  must  be  admitted,  was  economically  as 
inconsistent  as  it  was  unnatural.  The  economic 
variations  determined  by  the  conflicting  interests 
of  city  and  country,  of  highland  regions  and  low- 
land regions,  explain  many  provisions  in  the  con- 
stitutions of  the  commonwealths. 

So,  on  the  3d  of  February,  Beatty,  of  La  Fourche 
Interior,  in  defending  the  federal  apportionment, 
claimed  that  it  was  demanded  by  the  industrial 
condition  of  Louisiana,  as  seen  in  the  almost  an- 
tagonistic interests  of  New  Orleans  and  the  country. 
True,  the  city  by  such  an  apportionment  would 
possess  less  influence  than  by  an  apportionment 
according  to  the  number  of  white  electors  exclusive- 
ly. In  all  countries  the  influence  of  large  cities 
had  been  detrimental  to  the  States  in  which  they 
were  situated.  Paris  had  controlled  the  destinies 
of  France.  It  was  by  the  motley  and  excitable 
population  of  that  city  that  the  horrors  of  the 
French  Revolution  had  been  perpetrated.  There, 
revolution  had  been  succeeded  by  revolution  until 
Napoleon  had  placed  the  imperial  crown  upon  his 
own  head.  Paris  had  followed  the  precedent  of 
Rome,  which  aspired  to  govern  the  world.  The 
slightest  convulsion  in  the  imperial  city  was  felt 
in  the  remotest  province.     At  last,  by  her  over- 

441 


Constitutional  History  of  tJje  American  People 

grown  and  pampered  weight,  Rome  fell  to  the  low- 
est scale  of  degradation  and  impotence.  Had  the 
power  of  the  Roman  Republic  been  diffused 
throughout  the  empire,  instead  of  being  concen- 
trated in  the  city  of  Rome,  the  republic  would 
have  possessed  a  recuperative  energy  capable  of 
withstanding  the  shock  of  the  Northern  barbari- 
ans, Louisiana  should  profit  by  the  experience  of 
the  past.  The  country  should  be  placed  beyond 
the  corroding  influence  of  the  city.  The  republics 
of  ancient  Greece,  controlled  by  their  cities,  had 
fallen  a  prey  to  luxury  and  licentiousness.  Loui- 
siana should  pursue  any  system  that  would  diffuse 
power  throughout  the  State,  instead  of  concen- 
trating it  in  any  one  part,  especially  in  the  city. 
It  was  dangerous  to  republican  liberty  to  place 
power  in  the  hands  of  the  few.  On  the  basis  of  the 
free  white  population.  New  Orleans  would  elect 
one-third  of  the  Assembly,  and  at  the  rate  of  in- 
crease of  that  class  of  population,  in  a  few  years 
would  choose  one-half  of  it.  Under  these  circum- 
stances, the  federal  basis  was  the  correct  one. 
Slaves  were  not  merely  property,  but  a  portion  of 
the  population  as  well  as  labor  of  the  State.  As 
the  laboring  element,  they  were  the  exclusive  source 
of  wealth.  If  the  free  white  population  was  adopted 
as  the  basis,  taking  into  consideration  the  fact  that 
the  slave  population  of  New  Orleans  was  fast  di- 
minishing, it  was  not  impossible  that  in  a  few 
years,  without  detriment  to  her  own  interests,  New 
Orleans  might,  perhaps,  carry  the  abolition  of  sla- 
very. The  number  of  Representatives  chosen  on  the 

442 


TJm  Negro  Beyond  ibe  Pale  of  Politics 

federal  basis  should  be  fixed  every  ten  years  by  the 
State  Legislature,  and  never  be  fewer  than  thirty 
nor  more  than  one  hundred. 

To  this  proposition  it  was  objected  that  repre- 
sentation should  be  equal  and  uniform  throughout 
the  State,  and  be  forever  regulated  by  the  number 
of  qualified  electors,  using  the  language  of  the 
constitution  of  1812.  The  people  have  a  right  to 
govern  themselves,  and  by  the  people  was  meant 
the  free  white  males  past  twenty-one  years  of  age. 
This  excluded  slaves,  because,  from  necessity  as 
well  as  from  choice,  slaves  were  regarded  as  prop- 
erty. They  had  never  been  enumerated  as  po- 
litical persons.  Policy  also  compelled  the  exclu- 
sion of  free  persons  of  color  from  participation  in 
political  rights,  and  it  might  compel  their  exclusion 
from  the  State.  It  was  wholly  irrelevant  to  cavil 
against  the  exclusion  of  negroes,  because  minors 
and  women  were  excluded.  These  were  represent- 
ed by  their  actual  or  selected  protectors,  just  as  the 
Legislature  represented  the  will  of  the  people,  the 
executive  their  power,  and  the  judiciary  their  rea- 
son and  justice.  It  had  been  urged  that  taxation 
should  regulate  representation;  the  parish  paying 
the  greatest  amount  of  taxes  to  have  the  most 
Representatives.  But  taxation  being  laid  on  prop- 
erty and  profitable  professions,  it  was  difficult  to 
determine  accurately  who  paid  the  tax.  Certainly 
they  who  paid  the  money  into  the  hands  of  the 
tax-collector  were  not  the  only  ones  who  suffered 
the  burdens  of  government.  All  classes  of  society 
contributed  to  the  treasury.    Property  afforded  no 

443 


Couslifiitional  History  of  the  American  People 

test  of  representation.  The  federal  basis  could 
have  no  application  in  Louisiana,  where  no  union 
was  to  be  formed  and  no  compromises  to  be  made. 
It  had  no  necessary  connection  with  the  represen- 
tation in  the  Legislature  of  an  independent  State, 
w^ith  common  interests,  the  same  institutions,  and 
a  homogeneous  population  throughout  its  limits. 
As  applied  to  Louisiana,  it  was  indeed  an  unequal 
basis,  because  it  would  necessarily  lead  to  an  anti- 
republican  consequence — the  minority  governing 
the  majority.  This  view  was  held  by  those  who 
advocated  that  basis.  They  claimed  that  they  had 
the  balance  of  power  in  the  country,  and  were  go- 
ing to  retain  it.  It  was  unreasonable  to  give  one 
portion  of  citizens  a  greater  weight  in  the  legis- 
lative branch  than  another,  although  the  two  por- 
tions might  be  equal  in  numbers.  To  give  a  parish 
having  tliree  hundred  electors  one  Representative 
in  the  Legislature,  and  another  parish  having  only 
three  hundred  electors,  two,  because  its  electors 
owned  five  hundred  slaves,  w^as  a  violation  of  jus- 
tice. If  one  elector  owned  two  slaves,  especially 
if  they  were  so  old  or  so  young  as  to  be  valueless, 
although  another  elector  owned  houses  and  lands, 
stores,  shops,  and  factories,  the  slave-owner  would 
have  the  larger  representation.  No  white  man 
would  consent  that  two  slaves  should  have  more 
weight  in  the  political  government  of  Louisiana 
than  he  himself.  To  admit  the  federal  basis  would 
as  necessarily  make  Abolitionists  out  of  the  inhabi- 
tants of  parishes  in  which  there  were  few  slaves, 
and  out  of  non-slave-holders,  as  it  made  Abolition- 

444 


The  Federal  Basis  and  Agricultural  Interests 


t^' 


ists  of  the  people  of  the  Northern  States.  The 
knowledge  could  not  be  kept  from  the  slaves — and 
it  would  increase  at  every  election — that  two  of 
them  had  more  weight  in  the  government  than  a 
free  white  man.  This  would  soon  destroy  the  in- 
stitution of  slavery,  to  the  infinite  injury  of  the  ag- 
riculture, the  wealth, and  the  happiness  of  the  State. 
Every  slave  should  know  what  he  really  was  in 
Louisiana  —  property.  Every  freeman  should 
know  that  he  had  a  voice  in  the  government, 
that  the  slave  had  none.  This  knowledge  would 
raise  a  Chinese  wall  between  Abolitionism  and 
slavery,  and  forever  make  this  invaluable  institu- 
tion secure.  The  evil  consequences  of  the  federal 
basis  already  felt  by  the  slave-holding  States  would 
be  greatly  extended  by  admitting  free  persons  of 
color  to  a  participation  in  the  government,  instead 
of  entirely  excluding  them. 

A  leading  object  in  adopting  the  federal  basis 
was  to  give  the  agricultural  portion  of  the  coun- 
try an  influence  to  which,  by  weight  of  numbers, 
it  was  not  entitled.  This  result  would  promote 
antagonisms  and  prevent  that  harmony  and  equal 
union  of  the  agricultural,  commercial,  and  manu- 
facturing interests  of  the  State  so  necessary  to  its 
prosperity.  The  sole  purpose  of  changing  the 
basis  of  representation  in  the  constitution  of  1812 
was  to  deprive  the  cities  of  New  Orleans  and  La 
Fayette  of  the  representation  in  the  Assembly  to 
which  the  number  of  their  electors  justly  entitled 
them.  The  rule,  followed  in  the  old  constitution, 
was  to  make  taxation  the   basis  of  representation. 

445 


Const  it  lit  ioiial  History  of  the  American  People 

The  State  treasurer's  report  showed  that  the  cities 
in  the  State  contributed  more  than  one-half  of  its 
taxes.  The  greater  part  of  the  taxable  resources 
of  the  State  were  derived  from  the  commerce  con- 
centrating at  New  Orleans.  The  landed  property 
of  New  Orleans  and  La  Fayette  comprised  in 
valuation  nearly  one-half  that  of  the  whole  State. 
The  country  parishes  possessed  one  hundred 
and  sixty  thousand  slaves,  of  the  value  of  fifty 
millions  of  dollars.  If  representation  was  to  be 
based  on  wealth,  these  two  cities  would  have  more 
Representatives  than  the  country  parishes,  because 
the  value  of  the  manufactures,  the  machinery,  the 
ships  and  steamboats,  the  warehouses,  the  rich 
and  costly  furniture  accumulated  in  public  and 
private  houses,  the  stocks  and  money  in  bank,  in 
these  cities  far  exceeded  in  the  aggregate  the 
value  of  all  the  slaves  of  the  remaining  portion  of 
the  State.  There  was,  then,  no  reason  for  depart- 
ing from  the  principle  of  representative  govern- 
ment, except  the  arbitrary  one  of  resisting  the 
growing  influence  of  the  cities  of  the  common- 
wealth. This  spirit,  prejudicial  to  the  city,  was 
based  on  a  supposed  diversity  between  the  interests 
of  town  and  country,  Jefferson's  ideas  on  the  in- 
fluence of  cities  on  the  body  politic  did  not  per- 
suade all  the  members.  Many  of  them  believed 
that  great  commercial  cities  exercise  a  most  ben- 
eficent influence  on  the  States  to  which  they 
belong,  that  commerce  harmonizes  and  civilizes, 
and  that  any  policy  which  arrests  the  growth  of 
cities  is  injurious  to  the  State. 

446 


To  Curb  the  Power  of  Big  Cities 

Benjamin,  objecting  to  the  federal  basis,  now 
argued  that  if  slaves  were  to  be  included,  then, 
with  equal  propriety,  should  be  included  oxen  and 
horses,  which  were  equally  productive — an  argu- 
ment advanced  by  the  opponents  of  slavery  in  the 
federal  convention  of  1787.  The  discussion  of 
the  subject  in  the  Virginia  convention  of  1830 
was  again  cited  as  a  precedent,  "as  more  able 
debates  on  the  subject  of  representation  than  had 
occurred  elsewhere,  and  as  leading  to  the  rejec- 
tion of  the  federal  basis;  representation  in  Vir- 
ginia, at  least,  having  been  based  on  the  divisions 
of  the  State  east  and  west  of  the  mountains,  and 
upon  taxation  and  numbers." 

It  was  now  urged  that  the  principle  of  restrain- 
ing the  influence  of  large  cities  was  well  known 
in  all  the  States,  and  that  equally  well  understood 
was  the  principle  of  giving  to  each  separate  polit- 
ical community  within  the  State  a  voice  in  the 
general  administration  of  public  affairs.  Not  popu- 
lation alone,  but  locality  and  incorporated  inter- 
ests, for  the  most  part,  entered  into  the  basis  of 
representation  in  other  States.  Several  constitu- 
tions provided  that,  with  the  increase  of  population, 
there  should  be  an  increase  in  local  representation. 
The  Legislature  of  Louisiana  should  be  forbidden 
to  create  any  new  parishes  less  in  area  than  twenty 
to  twenty-five  square  miles,  and  not  containing  a 
requisite  population  ;  then  the  equity  of  representa- 
tion would  be  secured.  In  Massachusetts  and  New 
Hampshire  the  unit  of  representation  was  a  cer- 
tain number  of  electors.     In  Vermont  it  was  the 

447 


Constitutional  History  of  the  American  People 

incorporate  town.  Rhode  Island,  apprehending 
danger  from  the  concentration  of  power  in  cities, 
provided  that  no  town  should  have  more  than  one- 
sixth  of  the  representation — a  principle  which  has 
been  followed  in  later  State  constitutions.*  It 
was  necessary  to  guard  against  the  undue  influence 
of  cities.  Maryland  limited  the  influence  of  Balti- 
more, and  in  its  constitution  of  1838  also  provided 
that  should  any  of  the  counties  of  the  State  fall 
short  of  the  number  of  people  fixed  upon  as  the 
basis,  they  should  retain  the  representation  which 
had  been  accredited  to  them.  This  constitution 
entered  into  details,  in  order  to  secure  the  State 
against  domination  by  municipalities.  South  Caro- 
lina was  arbitrary  in  its  apportionment.  Charles- 
ton, although  possessing  one  -  third  of  the  pop- 
ulation of  the  State,  could  not  have  more  than 
one-ninth  of  the  membership  of  both  Houses.  In 
North  Carolina  the  basis  according  to  the  federal 
principles  was  adopted  for  the  Lower  House,  though 
each  county  was  to  have  one  member  whether  or 
not  it  had  the  full  ratio.  So  Georgia  provided 
that  one  Senator  should  be  elected  from  each 
county  without  respect  to  population.  The  basis 
was  on  federal  principles,  the  ratio  being  fixed  at 
fifteen  hundred  persons ;  but  no  county  could 
have  more  than  four  nor  less  than  one  Represent- 
ative. 

Kentucky,  Ohio,  and  Illinois  based  representa- 


*  As  in  Pennsylvania  in  1873,  respecting  Philadelphia,  and  in 
New  York  in  1894,  respecting  the  city  of  New  York. 

448 


Restrictions  on  Municipal  Representation 

tion  on  the  number  of  qualified  voters,  but  in  all 
these  States  each  county  was  given  at  least  one  Rep- 
resentative. The  constitution  of  Louisiana  of  1812 
was  but  a  transcript  of  the  Kentucky  constitution 
of  1799.  The  inland  States  could  never  have  vast 
cities  with  overpowering  influence  and  interests 
antagonistic  to  those  of  the  country,  and  there- 
fore their  constitutions  were  not  precedents  for 
Louisiana.  Alabama,  Missouri,  and  Arkansas  were 
cited  to  show  that  these  carried  out  the  principle 
that  each  county  shall  have  at  least  one  Represent- 
ative. The  relation  which  the  rural  inhabitants 
of  these  States  bore  to  the  inhabitants  in  large 
towns  was  not  like  that  which  the  inhabitants  of 
Louisiana  bore  to  the  city  of  New  Orleans.  This 
city  was  the  metropolis  of  the  whole  Mississippi 
Valley.  If  South  Carolina,  Maryland,  New  York, 
Rhode  Island,  and  Pennsylvania  had  found  it  nec- 
essary to  make  constitutional  provisions  confining 
the  influence  of  cities  within  their  boundaries, 
was  not  this  limitation  a  sufficient  precedent  for 
Louisiana?  It  should  follow  the  experience  of 
twenty  States  —  give  each  organized  parish  one 
Representative,  and  limit  the  city  of  New  Orleans 
to  a  fixed  proportion — say,  one-sixth  of  the  entire 
representation. 

To  these  arguments  a  member  from  New  Or- 
leans replied  that  the  precedents  cited  from  other 
State  constitutions  were  originally  derived  from 
the  method  of  apportioning  representation  in  Eng- 
land, were  part  of  the  rotten  -  borough  system  of 
that  country,  and  were  not  adapted  to  Louisiana. 

I. FF  449 


Constitutional  History  of  the  American  People 

The  system  in  the  Northern  States  prevailed,  as  it 
were,  by  force  of  habit.  Massachusetts  was  an  il- 
lustration of  the  degree  to  which  it  might  be  car- 
ried. In  that  commonwealth,  in  an  isolated  spot, 
situated  on  the  sea-coast,  frequented  by  watermen 
and  fishermen,  and  containing  but  a  few  huts,  was 
a  town,  and  it  had  a  Representative.  There  were 
doubtless  other  towns  of  no  greater  magnitude 
similarly  distinguished.  Certainly  Louisiana  would 
not  agree  to  apportion  representation  on  that 
basis. 

The  constitutional  history  of  the  commonwealths 
was  freely  drawn  upon,  accurately  and  inaccurately, 
and  with  equal  weight  with  the  convention.  It  is 
as  necessary  to  record  the  inaccurate  citations  as 
the  accurate,  for  oftentimes  an  erroneous  citation 
leads  to  the  adoption  of  a  clause  in  a  constitution. 
The  history  of  representative  government  is  the 
history  of  fiction  and  of  fact,  for  fact  and  fiction 
are  curiously  blended  when  a  constitution  of  a  com- 
monwealth is  made.  The  interstate  influence  of 
the  commonwealth  constitutions  can  probably  be 
no  better  illustrated  than  by  recording  such  cita- 
tions as  these  which  occur  in  the  Louisiana  con- 
vention. Though  loosely  made,  and  probably 
without  the  means  of  verification  at  hand,  the 
fact  that  constitutions  of  other  States  are  quoted 
in  these  conventions  contributes  to  a  general  uni- 
formity in  the  fundamental  law.  The  primary  in- 
fluence of  the  eighteenth-century  constitutions  was 
chiefly  felt  in  the  earlier  Western  States.  After 
1800,  in  slave-holding  States  the  Virginia  prece- 

450 


Native -Americanism  and  the  Natiwali^ed  Citizen 

dents  were  always  authoritative ;  in  free  States 
the  New  York  precedents  prevailed. 

On  the  nth  an  effort  to  prescribe  a  real-estate 
qualification  for  Representatives  was  defeated  by  a 
vote  of  four  to  one,  and  further  efforts  in  this  di- 
rection were  abandoned.  By  a  majority  of  three 
votes  the  time  for  residence  was  fixed  at  three 
years.  The  spirit  of  Native -Americanism,  a  poli- 
tical characteristic  of  the  country  at  this  time,  was 
quite  strong  in  the  convention,  and  it  sought  to 
exclude  naturalized  citizens  from  filling  the  office 
of  Governor.  In  speaking  against  this  proposi- 
tion, a  member  remarked  that  he  could  see  no 
necessity  for  it,  because  members  of  many  fam- 
ilies in  the  State  had  intermarried  into  foreign 
families,  and  had  so  interwoven  their  own  inter- 
ests with  those  of  naturalized  citizens  that  these 
should  be  regarded  as  Americans.  To  discrimi- 
nate between  the  native-born  and  the  naturalized 
citizen  would  produce  great  mischief  in  society. 
A  period  of  sixteen  years'  residence  as  a  citizen 
of  the  United  States,  ten  of  which  had  been  spent 
within  the  State,  would  be  a  sufficient  guarantee 
of  interest  and  attachment  to  the  commonwealth. 
In  the  Florida  parishes  there  were  many  men 
born  prior  to  the  acquisition  of  that  part  of  the 
State,  and  they  should  not  be  deprived  of  eligi- 
bility to  office. 

This  convention  was  in  session  at  a  time  when 
there  existed  great  prejudice  against  foreigners 
and  the  Native-American  party  was  at  the  height 
of  its  influence.     At  this  time  New  York,  Maine, 

451 


Constitutional  Histofy  of  tJje  American  People 

and  Virginia  required  their  Governors  to  be  native- 
born  citizens,  and  the  constitutions  of  these  States 
were  cited  as  sufficient  precedent  for  Louisiana. 
Indeed,  the  Governor  should  be  further  qualified, 
as  was  the  case  in  Massachusetts,  by  possessing 
landed  property  of  the  value  of  five  thousand 
dollars,  so  as  to  make  the  State  wholly  secure  in 
electing  him.  If  a  native  American,  he  would 
fairly  understand  the  wants  of  the  people ;  if  a 
slave  -  property  holder,  he  would  exercise  the  tax- 
ing power  with  discretion.  The  principal  argu- 
ment in  defence  of  a  property  qualification  was 
always  its  guarantee  of  protection  by  means  of 
taxation.  One  member  was  satisfied  that  the 
Constitution  of  the  United  States  prohibited  a 
State  from  limiting  office  to  native  -  born  Ameri- 
cans. Another  thousfht  that  the  United  States 
and  a  State  were  not  in  the  same  relation  to 
the  citizen.  If  a  State  wished  to  make  a  dis- 
crimination among  its  own  citizens,  those  of  other 
States  had  no  right  to  complain.  A  citizen  from 
another  State  might  challenije  the  ricrht  of  Loui- 
siana  to  exclude  him.  It  excluded  not  only  the 
naturalized  citizen  of  the  United  States,  but  also 
proposed  to  exclude  from  eligibility  to  certain 
offices  all  the  naturalized  citizens  of  Louisiana. 
This  would  practically  reduce  the  citizens  of  other 
States  and  of  Louisiana  to  the  same  level.  But 
what  is  the  right  of  the  State  to  make  such  a  dis- 
crimination.'* asked  a  member.  Even  those  most 
jealous  in  upholding  the  rights  of  the  States  knew 
that  no  State  sovereignty  had  any  right  to  destroy 

452 


Supremacy  of  Congress  over  State  Laws 

the  effect  of  federal  lesfislation  when  that  legrisla- 
tion  was  authorized  by  the  national  Constitution. 
The  Constitution  gave  to  Congress  the  power  to 
establish  a  uniform  rule  of  naturalization  throufrh- 
out  the  country.  Several  States  had  conceded  to 
the  general  government  all  control  over  this  sub- 
ject; and,  therefore,  any  legislation  which  the  na- 
tional government  adopted  must  be  regarded  as 
supreme.  Congress  had  adopted  uniform  rules  of 
naturalization,  nor  could  any  one  of  the  States 
legislate  contrary  to  the  act  of  Congress. 

Any  person  having  the  act  and  the  judgment  of 
the  court  in  his  favor  was  an  American  citizen,  and 
his  citizenship  could  not  be  invalidated  by  any  law 
emanating  from  State  authority.  The  convention 
had  power  to  prescribe  any  qualification  it  pleased 
for  the  ofifice  of  Governor,  provided  that  in  doing 
so  it  made  no  discrimination  between  American 
citizens.  Such  discrimination  was  prohibited  by 
the  national  Constitution  when  it  declared  that  a 
citizen  of  each  State  is  entitled  to  all  the  privileges 
and  immunities  of  citizens  of  the  several  States. 
All  American  citizens  were  upon  the  same  footing 
of  equality;  the  Constitution  did  not  distinguish 
between  native  and  naturalized  citizens.*  The 
national  Constitution  was  an  injunction  upon 
the  several  States,  and  with  the  strong  voice  of 
supreme  authority  forbade  them  to  enact  any  legis- 
lation discriminating  against  the  citizens  of  a  par- 


*  Except  that  the  President  and  Vice-President  must  be  na- 
tive-born. 

453 


Const  if  lit  ional  History  of  the  American  People 

ticular  State.  To  exclude  naturalized  citizens  from 
eligibility  to  the  office  of  Governor  would  create 
distinctions  and  disregard  the  fundamental  law  of 
the  Union.  A  native  citizen  of  Mississippi  going 
to  Louisiana  would  be  eligible  to  the  office  of  Gov- 
ernor, but  a  naturalized  citizen  from  any  State 
would  be  excluded.  This  would  clearly  be  creating 
in  one  State  a  discrimination  between  citizens  of 
the  several  States.  It  could  not  then  be  said  that 
citizens  of  each  State  had  been  vested  in  Louisi- 
ana with  the  privileges  and  immunities  of  citizens 
in  all  the  States.  Louisiana  would  have  violated 
and  destroyed  the  integrity  of  the  federal  Constitu- 
tion. 

In  reply  to  this  national  idea  of  citizenship,  it 
was  said  that  the  national  Constitution  did  not  per- 
mit so  broad  a  view.  It  did  not  declare  that  a 
citizen  of  another  State  should  have  a  right  to 
hold  office  in  any  particular  State.  If  so,  a  citizen 
of  Missouri  might  be  made  a  candidate,  and,  if 
elected  by  the  people  of  Louisiana,  claim  of  right 
to  be  its  Governor.  Citizens  of  other  States  could 
not  claim  the  right  to  enjoy  the  same  privileges 
and  immunities  in  a  new  State  which  they  had  en- 
joyed in  their  own.  If  this  were  true,  the  citizen 
of  Massachusetts  coming  to  Louisiana  would  have 
a  rio;ht  to  vote  in  Louisiana  accordino:  to  the  laws  of 
Massachusetts.  In  New  York,  negroes  were  entitled 
to  vote,  and  if  the  doctrine  was  true,  negroes  would 
have  a  rio:ht  to  vote  in  Louisiana.  Thus  the  old 
difficulty  of  realizing  the  equal  rights  of  the  citi- 
zens of  the  several  States,  which  had  sprung  up  at 

454 


Hard  to  Equalise  the  Rights  of  Citi{enship 

the  time  of  the  Missouri  controversy,  and  which 
always  appeared  when  a  slave-holding  State  at- 
tempted to  define  the  franchise,  duly  appeared  in 
the  Louisiana  convention.* 

*  Compare  this  train  of  ideas  with  the  discussion  of  the 
same  question  at  the  time  of  the  admission  of  Missouri :  Chap- 
ter vi. 


CHAPTER    XV 

ELEMENTS    OF    DISCORD    IN    THE   COMMON- 
WEALTH 

The  only  reason  for  retaining  the  word  native 
in  defining  the  qualifications  of  the  Governor  was 
to  secure  a  native-born  citizen  as  Governor  in  time 
of  war.  Birth  and  citizenship  are  not  synony- 
mous terms.  As  all  aijreed  that  none  but  a  citi- 
zen  of  Louisiana  could  vote,  or  be  elected  Gov- 
ernor, what  was  the  relevancy  in  quoting  the 
Constitution  of  the  United  States?  So  broad  an 
interpretation  of  the  national  Constitution  tended  to 
deprive  a  State  of  its  sovereign  power  to  regulate 
the  qualifications  of  its  own  officers  and  to  define 
the  qualifications  both  of  the  elector  and  of  the 
elected.  The  States  had  never  so  far  parted  with 
their  sovereignty  as  to  deprive  themselves  of  the 
ricfht  to  reo^ulate  their  own  domestic  affairs.  It 
was  impossible  for  citizens  of  foreign  birth  to  dis- 
franchise their  sentiments  ;  therefore  it  was  unsafe 
to  qualify  them  for  holding  office.  In  time  of 
war,  could  a  foreign-born  chief  magistrate  so  far 
forget  the  country  of  his  birth  as  to  avoid  endan- 
gering the  interests  of  the  commonwealth  ?  The 
framers  of  the  federal  Constitution  intended  that 
the  citizens  of  one  State  should  not  be  regarded 

456 


Check  on  the  Vagaries  of  State  Constitutions 

as  strangers  in  another  State,  but  in  all  things  be 
equal  to  its  citizens.  The  Constitution,  laws,  and 
treaties  of  the  United  States  were  the  supreme 
law  of  the  land — a  provision  which  forbade  the 
introduction  of  foreign  matter  into  a  State  con- 
stitution. A  discrimination  against  naturalized 
citizens  was  abhorrent  to  the  principles  of  rep- 
resentative government,  and  the  judges  of  the 
United  States  courts  would  not  recognize  it. 
Though  a  State  constitutional  convention  might 
deviate  from  the  true  path,  the  judges  of  the 
courts,  both  State  and  federal,  would  ultimately 
bring  back  constitutional  provisions  and  legisla- 
tion into  harmony  with  the  supreme  law  of  the 
land.  It  was  true  that  six  States — Alabama,  Ar- 
kansas, Missouri,  Maine,  New  York,  and  Virgin- 
ia—  required  their  chief  executive  to  be  native- 
born  ;  but  twenty  —  and  with  the  Constitution 
of  the  general  government  in  plain  view  —  had 
rejected  such  a  provision.  According  to  the 
American  theory  of  government,  all  citizens  were 
on  a  footing  of  equality.  Should  Louisiana  hesi- 
tate to  choose  between  the  wisdom  of  twenty 
States  and  the  intemperance  of  six  ?  Nor  was  it 
true,  as  some  had  declared,  that  at  the  time  of 
making  the  national  Constitution  its  framers  in- 
tended such  a  discrimination.  As  soon  as  the 
States  acknowledged  that  the  federal  Constitu- 
tion was  the  supreme  law  of  the  land,  the  power 
of  naturalization  became  the  exclusive  privilege  of 
Congress. 

On  this  point  the  best  authority  was  The  Feder- 

457 


Consliiutional  History  of  fhe  American  People 

alist.  "  The  dissimilarity  in  the  rales  of  natural- 
ization has  long  been  remarked  as  a  fault  in  our 
system,  and  has  left  a  foundation  for  intricate  and 
delicate  questions.  In  the  fourth  article  of  the 
old  confederation  it  is  declared  that  the  free  in- 
habitants of  each  of  these  States — paupers,  vaga- 
bonds, and  fugitives  from  justice  excepted — shall 
be  entitled  to  all  privileges  and  immunities  of  free 
citizens  of  the  several  States,  and  the  people  of  each 
State  shall  in  every  other  enjoy  all  the  privileges 
of  trade  and  commerce."*  The  term  "  free  inhab- 
itants "  here  obviously  implied  that  the  citizens  of 
the  State  were  entitled  in  every  other  State  to  all 
the  privileges  of  its  free  citizens.  Every  State 
was  under  obligation  to  recognize  these  interstate 
rights  of  citizens. 

By  the  old  Articles  of  Confederation,  any  State 
might  discriminate  against  the  citizens  of  any 
other.  This  produced  confusion  and  hostility 
among  them.  Political  economy  compelled  the 
adoption  of  a  uniform  rule  of  naturalization,  and 
this  could  be  made  by  Congress  alone.  To  se- 
cure this  peace  and  the  equity,  the  Philadelphia 
convention  had  given  the  power  exclusively  to 
Congress. 

The  present  convention  had  assembled  to  re- 
move the  defects  in  the  constitution  of  1812,  not 
to  discriminate  among  the  citizens  of  the  State. 
If  the  naturalized  citizen  was  made  ineligible  to 
the  ofhce  of  Governor,  what  would  prevent  an  ex- 

*  77/,?  Federalist,  xlii.  The  speaker  also  quoted  at  length  from 
Story,  Commentaries  on  the  Constitution,  Vol.  iii.,  Sees.  1097-1800. 

458 


Eminent  Men  Who  Favored  Native- Americanism 

tension  of  the  same  spirit  of  exclusion  so  as  to 
prescribe  the  particular  district  or  parish  of  the 
State  from  which  he  must  be  chosen?  In  a  little 
while  this  hostile  feeling  towards  the  citizens  of 
other  States  would  be  made  to  include  a  partic- 
ular class  of  native  -  born  citizens,  and  thus  ulti- 
mately enthrone  aristocracy  and  discord.  The 
convention  had  been  called  explicitly  to  extend 
the  right  of  suffrage.  To  require  the  Governor 
to  be  native-born  would  not  be  in  accordance  with 
the  call  for  the  convention. 

But  others  took  a  different  view.  Was  not  the 
Virginia  convention  of  1829  a  sufficient  prece- 
dent.? Had  not  Monroe,  Madison,  and  Marshall 
been  among  its  members }  Had  not  that  conven- 
tion required  the  candidate  for  Governor  of  Virginia 
to  be  thirty  years  of  age,  a  native-born  citizen  of 
the  United  States,  and  a  resident  in  the  State  for 
five  years  ?  And  those  who  opposed  the  qualifica- 
tion of  nativity  forgot  that  Monroe  and  Madison 
had  been  each  twice  President  of  the  United 
States ;  that  Madison  was  one  of  the  chief  mem- 
bers of  the  convention  that  made  the  Constitution 
of  the  United  States,  and  that  Marshall  presided 
in  the  Supreme  Court.  These  men  certainly  un- 
derstood what  provisions  should  be  ingrafted  in  a 
State  constitution.  Was  it  error  to  err  in  such 
company  ?  Was  not  their  authority  sufficient  t 
Even  Congress  had  given  its  consent  to  the  qual- 
ification complained  of.  Alabama,  Missouri,  and 
Arkansas  were  not  members  of  the  old  confedera- 
tion of  thirteen  States.    Each  had  been  compelled 

459 


Constihitional  History  of  the  American  People 

to  submit  its  constitution  to  the  approval  of  Con- 
gress, lest  any  clauses  should  conflict  with  a  provi- 
sion of  the  federal  Constitution.  Congress  had 
admitted  these  States  into  the  Union  and  sanc- 
tioned the  provision  in  their  constitutions  requir- 
ing that  the  Governor  should  be  a  native-born 
citizen  of  the  United  States.  Who  would  say  that 
the  Representatives  and  Senators  of  the  whole 
country,  the  President  of  the  United  States,  and 
the  judges  of  its  courts,  had  obstinately  support- 
ed an  unconstitutional  provision ,?  There  was  no 
doubt  of  the  constitutional  right  of  Louisiana  to 
insert  such  a  clause. 

The  debate  on  the  qualifications  of  the  execu- 
tives had  at  last  narrowed  down,  as  Marigny,  of 
Orleans,  expressed  it,  to  the  question  whether  the 
people  of  Louisiana  would  have  a  naturalized  citi- 
zen for  their  Governor.  Entering  at  length  into 
the  history  of  the  State,  he  showed  that  its  citizens 
of  foreign  birth  had  shown  as  sympathizing  an  in- 
terest in  its  welfare  as  those  native-born.  Asy- 
lums, hospitals,  convents,  cathedrals,  institutions 
of  learning,  and  public  benefactions  of  various 
kinds  attested  the  philanthropy  of  many  distin- 
guished citizens  of  the  State  who  were  born  in 
foreign  lands.  Officers  of  high  rank,  of  inestimable 
service  to  the  State,  were  alien -born.  The  gen- 
eral welfare  of  the  commonwealth  had  been  as 
much  promoted  by  its  naturalized  as  by  its  native 
citizens.  Particularly  was  the  proposed  exclusion 
of  foreign-born  citizens  unwelcome  to  the  French 
population  of  the  State,  which  was  generously  rep- 

460 


Free  Colored  Persons  and  the  Slave  States 

resented  in  the  convention,  and  Marigny  made 
the  ablest  remonstrance  against  the  discrimina- 
tion, and  deplored  his  inability  to  speak  fluently 
in  English.* 

As  has  so  often  occurred  in  the  political  his- 
tory of  the  country,  the  most  earnest  defence  of 
democratic  principles  was  now  made  by  men  of 
foreign  birth.  Undoubtedly  the  unwillingness  of 
many  members  to  make  a  person  of  foreign  birth 
eliQ:ible  to  the  office  of  Governor  was  due  not  to 
any  desire  to  exclude  naturalized  persons  of  the 
white  race  from  coming  from  another  State  or 
country,  but  because,  as  a  member  said,  if  the 
State  had  no  right  of  preventing  any  class  of  citi- 
zens coming  from  other  States  from  being  eligi- 
ble to  office  in  Louisiana,  it  would  make  a  colored 
citizen  of  Massachusetts,  or  from  any  other  free 
State,  capable  of  holding  office.  Though  free  col- 
ored persons  were  not  persons  of  foreign  birth, 
they  were  not  considered  as  capable  of  being  iden- 
tified politically  with  the  citizenship  of  a  slave- 
holding  State.  They  were,  by  nature,  forever  for- 
eigners. The  convention  was  controlled  by  this 
sentiment,  and  in  its  desire  to  obliterate  even  the 
suggestion  that  a  free  person  of  color  could  be 
included  in  the  concept  of  the  State,  it  treated  the 
free  person  of  color  as  permanently  a  foreigner — 
the  naturalized  citizen  had  been  one.  The  Afri- 
can was  incapable  of  becoming  an  elector;  the 
foreign-born  white  man,  according  to  this  notion, 

*  The  debates  of  this  convention  were  published  in  both 
French  and  English. 

461 


Constitutional  History  of  the  American  People 

though  legally  capable  of  naturalization,  was  in- 
capable in  sound  political  economy  of  becoming 
identified  with  the  essential  interests  of  the  State. 
The  free  person  of  color  and  the  foreigner  were 
to  be  excluded  from  the  electorate  essentially  for 
the  same  reason. 

But  Virginia  was  not  the  only  precedent  quoted. 
New  York,  in  1821,  had  admitted  free  persons  of 
color,  under  a  property  qualification,  to  the  right 
of  suffrage.  If  eminent  names,  like  those  of  Madi- 
son, Monroe,  and  Marshall,  were  to  be  quoted  as 
authority  for  adopting  the  doctrines  of  Native- 
Americanism,  the  names  of  Tompkins  and  Van 
Buren,  members  of  the  New  York  convention, 
should  also  be  quoted,  for  they  had  voted  to  ex- 
clude naturalized  citizens  from  the  ofifice  of  Gov- 
vernor  of  New  York.  Had  not  Washington,  in 
his  farewell  address,  admonished  his  countrymen 
to  beware  of  foreign  influence?  Jefferson  wished 
that  there  was  an  ocean  of  fire  between  the  United 
States  and  Europe.  Certainly,  the  precedents  and 
the  authority  for  the  exclusion  of  foreigners  from 
office-holding  in  America  were  sufficient. 

At  this  point  some  one  inquired  whether  the 
matter  under  discussion  was  of  even  slight  im- 
portance in  practical  administration,  as  it  was 
highly  improbable  that  any  naturalized  citizen 
would  ever  be  elected  Governor  of  Louisiana.  If 
it  was  true,  however,  that  a  naturalized  citizen, 
a  person  invested  with  the  rights  of  citizenship 
under  the  act  of  Congress,  was  not  worthy  to  be 
trusted  with  the  office  of  Governor,  the  principle 

462 


Political  and  Leml  Acumen  in  the  Constitutions 


"^^ 


would  have  to  be  carried  further:  all  citizens  of 
foreign  birth  would  have  to  be  looked  upon  with 
suspicion ;  none  of  them  could  be  intrusted  with 
the  administration  of  the  laws  ;  and  all  the  depart- 
ments of  the  government  should  be  swept  "  with 
the  besom  of  Native-American  reform."  The  ex- 
ecutive department,  as  every  one  knew,  was  less 
important  than  the  legislative  and  the  judiciary. 
Why  exclude  the  adopted  citizen  from  an  ofifice  of 
little  importance  and  invest  him  with  a  weightier 
authority  ?  It  was  far  more  prudent  to  exclude 
him  from  the  bench  and  from  the  Legislature.  It 
was  immaterial  whether  or  not  Monroe,  Madison, 
and  Marshall  had  voted  for  Native-Americanism 
in  the  Virginia  convention.  Marshall  might  be  a 
learned  jurist,  but  little  importance  should  be  at- 
tached to  his  opinions  on  political  matters.  In 
the  days  of  the  black  cockade  he  was  a  Federal- 
ist, deeply  imbued  with  the  heresies  of  a  school 
whose  temporary  ascendency  had  fastened  upon 
the  country  the  odious  Alien  and  Sedition  laws — 
the  most  disgraceful  acts  that  had  ever  blotted  the 
statute  books  of  the  nation.  There  was  no  doubt 
that,  with  his  party,  he  sympathized  in  its  hostility 
to  foreigners.  Such  rights  involved  nothing  more 
than  the  assertion  and  maintenance  of  the  re- 
served rights  of  the  States.  By  the  consent  of  the 
States,  the  right  of  admitting  foreigners  to  citizen- 
ship had  been  conceded  to  the  general  govern- 
ment ;  the  States  had  consented  that  no  distinc- 
tion should  be  made  between  different  classes  of 
American  citizens.    This  was  no  invasion  of  State 

463 


Consiitutional  History  of  the  American  People 

rights.  It  was  a  stigma  to  describe  the  adopted 
citizens  of  the  State  as  foreigners.  An  American 
citizen,  declared  to  be  such  by  an  act  of  Congress 
and  by  a  judicial  decision,  could  not  be  distin- 
guished politically  from  an  American  by  birth. 
The  rights  of  the  adopted  citizen  were  as  sacred 
as  those  of  the  native-born;  he  could  not  be  de- 
spoiled of  them  without  violating  the  fundamental 
law  of  the  land.  If  Louisiana  was  to  distinguish 
between  different  classes  of  citizens,  a  due  regard 
for  its  own  safety  required  it  to  provide  against 
real,  not  imaginary,  dangers.  The  greatest  peril 
menacing  the  South  came  from  a  different  quarter 
than  naturalized  citizens.  These  dangers  were 
the  machinations  of  Northern  Abolitionists.  Was 
it  not  wiser  for  the  State  to  guard  against  them 
than  to  attempt  to  shield  the  commonwealth  from 
imaginary  perils.?  If  restrictions  were  to  begin, 
they  should  be  carried  out,  and  only  natives  of  the 
State  should  be  eligible  to  office.  If  adopted  citi- 
zens were  to  be  disqualified  from  office  because  it 
was  feared  that  some  of  the  prejudices  of  earlier 
associations  might  cling  to  them,  the  same  dis- 
qualification should  attach  to  the  Abolitionists 
and  to  all  who  came  from  the  land  of  Abolition. 

The  doctrine  of  Native-Americanism  was  too 
feeble  to  take  root  in  Louisiana.  It  had  not  been 
broached  before  the  election  of  the  members  of 
the  convention.  They  were  delegated  to  make 
a  constitution  for  all  the  people  of  the  State,  with- 
out regard  to  their  origin. 

Marshall's  opinions  on  the  franchise  were  worthy 

464 


MarshaU's  Leaning  Towards  the  Federal  Power 

of  being  accepted  as  authority.  In  purely  legal 
matters  not  involving  constitutional  powers,  his 
opinions  were  always  sound,  but  upon  constitu- 
tional questions  there  could  be  no  worse  guide. 
He  invariably  leaned  towards  the  power  of  the 
federal  government,  and,  where  there  was  no  ex- 
press grant  of  power,  he  was  always  ready  to  imply 
one  upon  the  slenderest  pretence.  If  it  were  true 
that  the  convention  had  no  power  to  prescribe  a 
constitutional  provision  depriving  the  citizens  of 
other  States  from  enjoying  the  same  political 
rights  and  privileges  which  the  citizens  of  Louisi- 
ana enjoyed,  the  result  would  be  an  absurd  one — 
that  a  negro  vested  by  law  in  Massachusetts  with 
the  privileges  of  a  citizen  would  be  entitled  to  all 
the  privileges  of  a  white  citizen  of  Louisiana. 
The  Constitution  of  the  United  States  never  con- 
templated any  other  than  the  white  population  in 
its  provisions  for  government.  An  absurd  con- 
clusion could  not  be  made  an  argument  against 
the  principle. 

This  idea  of  the  entire  exclusion  of  the  African 
race  originally  from  American  citizenship  was  a 
favorite  one  with  the  advocates  of  slavery.  It  was 
advanced,  as  it  will  be  remembered,  by  Pinckney, 
in  the  debate  on  the  Missouri  Compromise,  when 
he  said  he  was  the  author  of  the  clause  in  the  Con- 
stitution giving  equal  rights  to  the  citizens  of  the 
several  States,  and  that  neither  he  nor  any  of  his 
contemporaries  at  the  time  thought  for  a  moment 
of  including  any  person  of  the  African  race  in 
the  provision;  and  nearly  half  a  century  later  the 

I. — GG  465 


Constitutional  History  of  tlje  American  People 

same  idea  was  fundamental  in  the  Dred  Scott  de- 
cision. 

The  strucfQfle  to  enthrone  Native-Americanism 
was  a  provincial  legacy,  whose  title,  when  contested 
before  the  high  court  of  public  opinion,  proved  to 
be  imperfect  and  unworthy  of  the  decent  respect  of 
the  American  people.  Louisiana,  in  1845,  though 
greatly  influenced  by  the  idea,  refused  to  incorpo- 
rate it  in  its  constitution  ;  and  the  convention,  on 
the  I  ith  of  February,  struck  out  the  word  "native" 
by  a  vote  of  forty-one  to  twenty-seven,  and  in  the 
same  spirit  rejected  the  long-residence  qualification 
of  ten  years  for  the  Governor.  It  was  agreed  that 
he  should  be  required  to  be  a  citizen  of  the  Uni- 
ted States,  a  provision  which  did  not  appear  in  the 
eighteenth -century  constitutions,  and  which  was 
seldom  adopted  before  1850.  Indeed,  at  the  close 
of  the  nineteenth  century  it  is  not  found  in  all  the 
constitutions. 

Like  other  States  in  which  there  was  a  discrim- 
ination against  persons  of  color,  Louisiana  pro- 
vided that  its  militia  should  consist  of  free  white 
men  only.  On  the  26th,  the  basis  of  representation 
being  again  under  discussion,  the  convention  pro- 
ceeded, perhaps  unconsciously,  to  define  the  slave- 
holding  concept  of  an  American  commonwealth, 
and  no  definition  so  complete  in  all  its  details  is  to 
be  found  in  the  constitutional  history  of  any  other 
American  State.  It  might  not  be  expected  that  a 
slave-holding  State,  farthest  removed  from  those 
others  in  which  Abolition  notions  were  held  by  a 
portion   of  the   population  not  controlling  public 

466 


I 


The  Mixed  Population  of  Louisiana 

opinion,  would  express  such  sentiments  as  are  re- 
ported in  the  Louisiana  convention  of  1845. 

The  idea  of  the  poHtical  corporation  as  a  per- 
manent element  in  the  basis  of  representation  may 
be  accepted  as  predominant  in  American  gov- 
ernment. The  constitutional  history  of  Virginia 
shows  that  this  notion  has  long  prevailed  in  that 
commonwealth,  and  the  discussions  in  Massachu- 
setts in  1820  illustrate  the  difficulty  with  which 
that  idea,  advocated  by  the  Democratic  party,  was 
applied  in  that  commonwealth.  Louisiana,  in 
1845,  was  not  unwilling  to  follow  this  precedent 
for  corporation  representation  ;  but  was  it  willing 
to  apply  it  equally  in  both  branches  of  the  Leg- 
islature, or  should  one  of  them  be  apportioned 
according  to  population  }  If  apportioned  by  pop- 
ulation, of  what  should  that  population  consist 
— of  free  whites  only,  or  of  free  whites  and  three- 
fifths  of  all  other  persons,  excluding  Indians  not 
taxed  ?  If  there  had  been  a  homogeneous  popu- 
lation in  Louisiana  the  difBculty  in  apportioning 
representation  would  have  been  simple  to  solve. 
An  apportionment  by  mere  numbers  could  have 
been  made.  But  there  were  two  populations  in 
the  State — a  white  and  a  slave.  This  produced 
inequalities  that  rendered  a  white  basis  extremely 
partial  and  unequal  in  its  operation.  The  prepon- 
derance of  whites  over  slaves  in  some  of  the  par- 
ishes, and  of  slaves  over  whites  in  others,  was  so 
various  that  the  idea  of  excluding  slaves  from  the 
basis  altogether  was,  in  the  opinion  of  many,  unjust. 
It  practically  surrendered   the   political  power  of 

467 


Cojistitittioiial  History  of  flic  American  People 

the  State  into  the  hands  of  the  cities,  in  which  the 
white  population  was  on  the  increase  and  the  slave 
population  on  the  decrease.  The  manual  labor 
which  was  performed  in  the  country  by  slaves, 
was,  in  the  cities,  performed  by  white  servants. 
These  white  servants  were  not  citizens  of  the 
United  States,  and  were  as  little  interested  in  the 
general  welfare  of  the  country  as  were  the  slaves. 
Should  not  the  constitution  of  the  State,  in  de- 
fining the  basis  of  representation,  guarantee  to 
the  people  of  the  country  the  rights  and  powers 
to  which  they  were  entitled }  They  possessed 
the  greatest  proportion  of  the  territory  of  the 
State  and  the  preponderance  of  its  productive 
labor.  All  arguments  favoring  a  mixed  basis  of 
representation,  one  in  which  property  should  en- 
ter, equally  applied  to  the  admission  of  slaves  into 
the  basis  of  representation,  because  slaves  were 
property.  In  so  far  as  they  were  elements  in  pop- 
ulation, slaves  also  were  legal  persons.  Were  not 
laws  made  for  their  protection }  Were  they  not 
punished  if  they  committed  crimes  ?  Were  not 
the  relations  between  master  and  slave  defined? 
Was  it  right  that  the  owners  of  this  species  of 
property  should  be  denied  that  weight  in  the  coun- 
cils of  the  State  to  which,  as  property-holders,  they 
were  entitled?  If  the  white  basis  exclusively  were 
adopted  it  would  give  to  the  city  of  New  Orleans 
one-half  the  representation.  Some  seemed  willing 
to  fix  that  basis  and  restrict  the  city  to  one-fifth  of 
the  representation.  But  this  was  unfair  to  the 
southern   portion   of  the  State,  as  it  would   take 

468 


Difficulties  of  Representative  Apportionment 

from  it  a  portion  of  its  political  power  and  transfer 
it  to  the  north  and  to  the  west.  What  was  the 
policy  of  depriving  New  Orleans  of  her  just  share 
in  representation  and  giving  to  the  northwestern 
part  of  the  State  a  representation  to  which  it  was 
not  entitled  ? 

The  city  of  New  Orleans  and  the  northwestern 
part  of  the  State  were  two  regions  in  which  pop- 
ulation was  most  rapidly  increasing,  and  the  in- 
crease was  not  of  the  same  kind.  This  must 
produce  confusion  in  the  administration  of  gov- 
ernment. There  was  yet  another  difficulty :  if 
the  white  basis  alone  was  adopted,  some  of  the 
parishes  would  be  disfranchised  because  they  did 
not  possess  a  white  population  equal  to  the  ratio 
required.  These  very  parishes  had  always  en- 
joyed representation,  and  it  was  unjust,  as  well  as 
inexpedient,  to  take  that  away  from  them.  To  ap- 
portion a  Representative  to  a  parish  not  by  pop- 
ulation entitled  to  one  was  practically  to  intro- 
duce the  rotten-borough  system  of  England. 

In  apportioning  representation  in  Louisiana 
there  arose  the  same  difficulty  which  characterizes 
every  new  country  while  yet  its  population  is  mi- 
gratory and  some  portions  of  its  inhabitants  are 
increasing  much  more  rapidly  than  others.  These 
uncontrollable  elements  provoke  antagonisms  be- 
tween city  interests  and  country  interests,  and  have 
compelled  many  artificial  arrangements  by  which 
it  has  been  sought  to  equalize  representation.  So, 
in  1845,  Louisiana  attempted  to  equalize  it,  and 
the  difficulty  was  aggravated  not  only  by  the  so- 

469 


CoiisfifufioiLil  History  of  the  Anhricau  Pcopk 

cial  changes  rapidly  going  on  in  various  parts  of 
the  State,  by  the  coming  and  going  of  many  peo- 
ple, but  partly  by  the  essential  antagonism  be- 
tween free  labor  in  cities  and  slave  labor  in  the 
country.  No  city  population  in  America  has  ever 
been  essentially  a  population  of  slave-holders.  In 
a  city,  slaves  could  perform  only  domestic  service. 
They  were  incapable  of  working  in  shops  or  facto- 
ries. As  soon  as  a  slave  became  an  expert  work- 
man he  was  well  on  his  road  towards  freedom.  It 
has  often  been  said  that  slaver}'^  was  abolished  by 
the  emancipation  proclamation  and  the  thirteenth 
amendment ;  but  it  must  be  remembered  that 
these  were  written  by  the  industrial  interests  of 
the  American  people.  Free  labor  abolished  sla- 
very in  the  United  States.  When  Louisiana,  in 
1845,  was  attempting  to  apportion  its  representa- 
tion, it  was  attempting  the  solution  of  an  insolu- 
ble problem,  for  representation  cannot  be  appor- 
tioned between  slave-holdinsrand  non-slave-holdins: 
communities.  They  have  no  common  unit  of 
measure.  It  was  claimed  at  this  time  in  Loui- 
siana that  the  productive  labor  of  the  South  was 
its  slave  labor;  that  it  afforded  a  permanent  and 
certain  basis  of  representation,  and  that  in  view 
of  the  political  position  of  the  State  such  a  basis 
was  recommended  by  good  policy.  In  other  words, 
to  refuse  to  apportion  representation  according  to 
the  white  population  and  three-fifths  of  the  slaves 
was  to  repudiate  African  slavery.  Was  it  better 
for  Louisiana  to  concentrate  political  power  in  its 
cities  or  to  adopt  a  basis  of  representation  in  har- 

470 


The  Basis  of  Representation  in  Louisiana 

mony  \vith  the  political  doctrines  generated  nec- 
essarily in  a  slave-holding  community? 

Thus,  it  was  said  at  this  time  that  there  were 
but  three  modes  of  apportioning  representation 
applicable  to  the  State — according  to  population, 
accordinsf  to  taxation,  and  according:  to  the  number 
of  qualified  electors.  From  its  peculiar  position 
the  State  was  precluded  from  adopting  the  basis 
of  population,  because  in  that  population  was  a 
class  of  beings  who  were  held  as  property,  and  an- 
other class,  free  persons  of  color,  who,  though  pos- 
sessing personal  freedom,  did  not  exercise  any 
political  rights.  The  basis  of  taxation  was  liable 
to  many  objections.  Slavery  obliged  the  State  to 
adopt  various  measures  for  the  purpose  of  making 
secure  that  species  of  property  and  of  keeping  it 
in  a  proper  state  of  subordination.  The  militia 
system  and  the  police  patrols  of  the  State  were  very 
burdensome  on  this  white  population;  and,  there- 
fore, the  principal  weight  of  taxation  had  been 
thrown  on  slave  property.  The  Constitution  of  the 
United  States  provided  that  to  the  whole  number 
of  free  persons  there  should  be  added  three-fifths 
of  all  others.  By  adopting  such  a  basis  the  prin- 
ciple of  taxation  would  enter  into  the  apportion- 
ment, for  the  only  manner  in  which  slaves  could 
have  any  possible  connection  with  the  political 
system  of  the  State  was  in  their  character  as  prop- 
erty, which  made  them  subjects  of  taxation.  Free 
persons  of  color  could  not  be  made  a  part  of  the 
representative  number,  nor  could  unnaturalized  for- 
eigners, nor  citizens  of  other  States  who  happened 

471 


Constitutional  Histo/y  of  the  American  People 

to  be  in  the  commonwealth.  Nearly  all  the  free 
I)ersons  of  color,  the  foreigners,  and  the  citizens  of 
other  States  were  congregated  in  New  Orleans. 
Of  the  twenty-three  thousand  free  colored  persons 
in  the  State,  nearly  twenty  thousand  were  inhab- 
itants of  New  Orleans. 

If  taxation  on  slaves  alone  was  made  the  basis, 
it  would  operate  unequally,  not  only  on  city  and 
country,  but  on  different  portions  of  the  country. 
The  number  of  slaves  was  not  equal  in  the  dif- 
ferent parishes.  Where  slaves  predominated,  rep- 
resentation would  be  greater  in  proportion  than 
where  whites  predominated.  The  result  in  either 
case  would  be  unjust.  Sooner  or  later  there  would 
be  a  conflict  between  city  and  country.  If  it  were 
true  that  slaves  were  diminishing  in  the  city,  the 
same  causes  that  contributed  to  that  result  would 
continue  to  operate,  and  the  inhabitants  of  the 
cities,  not  slow  to  perceive  that  they  were  losing  po- 
litical power  in  the  ratio  of  the  decrease  of  slaves 
among  them,  and  in  consequence  of  their  increase 
in  other  portions  of  the  State,  would  soon  be 
maintaining  that  the  basis  of  representation  in 
the  State  was  not  white  men,  but  slaves.  This 
would  not  only  cause  antagonism  between  city 
and  country,  but  would  create  antagonism  towards 
slave  property,  as  being  used  to  deprive  the  cities 
of  their  just  political  power. 

From  this  antaq;onism  would  arise  hatred  to 
slavery  itself,  and  the  citizens  of  New  Orleans 
would  ultimately  be  united  as  one  man  against 
the    institution.      Such   a  condition  of  affairs   in 

472 


Claiming  the  Suffrage  for  the  Toiling  Masses 

Louisiana  would  practically  be  the  transfer  of  the 
cry  of  Abolition  from  the  North  to  Louisiana  it- 
self. It  was  necessary,  therefore,  for  the  general 
welfare  of  the  State,  that  such  an  antagonism 
should  not  be  permitted  to  arise.  This  interpre- 
tation of  the  discriminating  effect  on  New  Orleans 
of  the  adoption  of  the  federal  basis  was,  however, 
denied. 

Would  it  deprive  New  Orleans  of  a  portion  of 
her  political  power  ?  By  its  adoption  there  would 
be  included  in  the  basis  a  numerous  class  found  in 
the  city,  and  found  in  the  country  in  smaller  num- 
bers— the  laboring  class  of  the  white  population. 
These  white  laborers  were  the  counterparts  of  the 
country  slaves,  and  the  parallel  was  drawn  "  with- 
out intending  to  disparage  the  poorer  classes  that 
work  in  the  city  from  day  to  day  as  laborers,"  and 
for  whom  some  members  of  the  convention  boast- 
ed to  have  been  steadfast  in  claiming  the  political 
and  important  right  of  suffrage.  Admitting  that 
greater  relative  political  power  was  to  be  conceded 
to  the  proprietors  of  slaves  than  to  those  who  did 
not  possess  that  kind  of  property,  some  members 
of  the  convention  were  at  a  loss  to  know  how 
this  would  tend  to  introduce  Abolition  into  New 
Orleans,  "and  make  the  city  a  hot -bed  of  'that 
abominable  doctrine."  If  there  was  any  danger  of 
its  prevalence,  the  country  should  look  to  itself  for 
its  own  protection.  The  country  should  never  be 
made  dependent  for  safety  on  the  city.  In  spite 
of  the  theories  and  declamations  of  many,  the 
federal  basis  was  the  bulwark  against  Abolition- 

473 


Cousin  Hi  ioual  H /story  of  the  American  People 

ism.    It  was  a  peculiarly  fitting  basis  for  represen- 
tation in  a  slave-holding  State. 

Had  not  the  country  the  political  ascendency 
and  the  means  of  protecting  itself  ?  Was  not  the 
sentiment  regarding  slavery  unanimous  in  the 
State,  as  had  been  shown  in  the  treatment  by  the 
Senate  of  the  address  of  the  State  of  Massachu- 
setts on  the  very  matter  of  slave  representation  ? 
Had  not  the  Senate  of  Louisiana — and  without 
referring  this  address  to  a  committee — instantly 
passed  resolutions  expressing  its  indignation  at 
such  interference?  Had  not  the  resolutions  of 
the  Senate  been  taken  down  to  the  House  of 
Representatives,  and,  after  an  animated  but  brief 
debate,  been  engrossed,  returned  to  the  Senate,  and 
adopted  unanimously?  If  the  principle  of  federal 
representation  was  bad,  then  the  Abolitionists 
must  be  in  the  right.  The  proof  of  its  goodness 
was  its  preservation  of  the  Union,  for  no  one  pre- 
tended that  if  the  basis  were  abrogated  the  Union 
would  hold  together  twenty -four  hours.  It  was 
conceded  to  be  a  basis  on  a  natural  principle. 
Some  said  that  the  same  reasons  for  its  adop- 
tion did  not  exist  in  the  State  as  in  the  United 
States.  The  effect  in  both  cases  was  the  same,  for 
it  would  be  an  equilibrium  between  the  States  on 
the  one  hand  and  between  parishes  on  the  other. 
It  would  reconcile  disparities  in  population — an 
excess  of  white  population  balancing  an  excess  of 
slave.  It  had  been  said  that  this  basis  involved 
an  unjust  preference  for  one  kind  of  property. 
But  it  was  not  easy  to  subject  all  kinds  of  prop- 

474 


Slaves  Both  Property  and  Population 

erty  to  equal  taxation,  and  some  kinds  of  property 
could  not  be  made  subject  to  taxation.  Slaves  were 
visible  property ;  they  were  attached  to  the  soil.  It 
was  impossible  to  apportion  representation  equally 
upon  all  kinds  of  property,  and  it  was  equally  im- 
possible to  distribute  representation,  giving  to  each 
political  community  its  just  proportion.  The  real 
difficulty  between  the  Abolitionists  and  the  people 
of  Louisiana  was  slave  labor -as  opposed  to  white 
labor.  This  difference  was  at  the  foundation  of 
all  their  pretended  philanthropy  towards  the  slave, 
and  it  was  therefore  essential  that  the  people  of 
Louisiana  demonstrate  that  the  principle  against 
which  Abolitionists  waged  war  was  consecrated  in 
Louisiana  as  a  perpetuit3\  Although  in  a  sense 
slaves  were  property,  they  were  in  themselves,  in 
another  sense,  a  portion  of  the  population  of  the 
State,  and  both  as  persons  and  as  property  should 
enter  into  the  basis  of  representation.  But  this 
idea  was  not  gently  received. 

Was  there  nothing  derogatory,  inquired  a  mem- 
ber, in  the  idea  of  placing  a  slave  upon  an  equal- 
ity with  a  white  man  in  representation  }  It  would 
give  rise  to  jealous  feelings.  The  proprietors  of 
slaves  would  have  much  more  influence  at  the 
ballot-box  than  the  honest  citizen  who  was  too 
poor  to  own  a  slave.  True,  both  would  deposit 
one  vote,  but  the  vote  of  the  slave-owner  would  be 
doubled,  trebled,  or  quadrupled  in  proportion  to 
the  number  of  his  slaves.  The  white  man,  the 
father  of  five  minor  children,  would  have  but  a 
single  voice   at   the  polls,  while   the   owner  of  a 

475 


Constitutional  Histo/y  of  tljc  American  People 

decrepit  and  worn-out  negro  and  four  negro  chil- 
dren would  be  entitled  not  only  to  his  own  vote, 
but  also  to  three  additional  votes  on  account 
of  those  slaves.  The  principle  was  unjust.  It 
operated  exclusively  in  favor  of  the  rich.  Were 
there  not  poor  people  in  the  country  who  did 
their  own  work }  Was  it  not  repugnant  to  the 
true  principles  of  democracy  that  the  farmer  hav- 
ing no  slaves,  working  his  own  farm,  should  have 
less  weight  in  the  government  of  the  State  than 
the  adjoining  rich  proprietor  who  had  a  hundred 
negroes }  If  the  purpose  in  advocating  the  fed- 
eral basis  was  ultimately  to  restrain  the  political 
influence  of  the  city,  was  it  not  better  to  prescribe 
the  exact  representation  of  the  city  according  to 
a  less  questionable  principle  than  that  of  the 
federal  basis  "i  Even  in  Virginia  the  federal  basis 
had  not  been  advocated  except  as  a  means  for 
maintaining  the  equilibrium  between  the  two 
great  geographical  divisions  of  the  State. 

On  the  27th  an  effort  was  made  to  apportion 
representation  according  to  the  federal  basis,  and 
also  to  limit  the  representation  in  any  city  or 
parish  to  one -fifth  of  the  whole  number  of  Rep- 
resentatives. This  proposition  at  once  led  to  the 
disclosure  of  the  anomaly  upon  which  it  rested. 
If  a  city  or  parish  contained  more  than  one-fifth 
of  the  entire  population  of  the  State,  how  could  it 
justly  be  deprived  of  its  proportion  of  representa- 
tion ?  No  other  State  in  the  Union  combined 
two  so  hostile  propositions. 

The  African  slave  and  the  free  person  of  color 

476 


Humanizing  Influence  of  Spanish  Colonisation 

were  not  without  advocates  even  in  this  conven- 
tion. At  all  times  in  America  the  slave  had  been 
protected.  The  Spanish  government  prescribed 
the  same  criminal  jurisprudence  for  the  white  and 
for  the  negro  population.  Had  not  the  slave  a 
right  to  purchase  his  own  freedom  ?  Had  he  not 
a  right  to  acquire  and  hold  property }  Even  the 
master  had  no  right  to  inherit  his  slave's  property.? 
In  some  parishes  slaves  had  the  right  to  assemble 
on  Sunday,  a  right  originally  granted  them  by 
Isabella  the  Catholic,  which  the  State  of  Louisiana 
had  respected  until  it  adopted  the  black  code. 
Under  the  name  of  law  slaves  had  been  deprived 
of  nearly  all  their  ancient  privileges,  and  yet  some 
sought  to  apportion  representation  according  to 
slaves.  The  constitution  of  1812  deprived  free 
persons  of  color  of  all  right  to  representation. 
When  that  constitution  was  made,  the  basis  of 
representation  was  the  free  white  population. 
Under  the  Spanish  government  free  blacks 
had  enjoyed  all  the  privileges  of  white  persons. 
This  condition  had  led  to  an  amalgamation  be- 
tween the  white  and  the  colored  races  until  the 
black  race  had  come  within  four  degrees  of  the 
white.  Were  there  not  families  in  the  State  whose 
color  depended  on  the  law  as  a  means  of  recogniz- 
ing that  they  were  of  the  white  race  ?  Because  of 
the  amalgamation  of  races  in  Louisiana,  it  was  im- 
possible to  apportion  representation  on  any  basis 
in  which  color  must  be  a  discriminating  element. 
Equally  unjust  was  it  to  apportion  representation 
so  that  a  city  having  four-fifths  of  the  population 

477 


Const  it  lit  ioial  Histoiy  of  tfjc  American  People 

and  paying  three-fourths  of  the  taxes  of  the  State 
should  have  but  one-fifth  of  the  representation. 

But  there  were  those  who  objected  to  the  feder- 
al basis  because  slaves  could  be  conceived  in  no 
sense  as  being  persons.  Though  in  a  moral  sense 
the}'^  were  persons,  according  to  the  condition  of 
affairs  in  the  State,  because  they  formed  an  ex- 
clusive portion  of  its  population,  they  could  not  be 
conceived  to  be  political  persons.  In  no  democracy 
which  could  be  construed  as  a  precedent  had  the 
slave  ever  been  allowed  to  participate  in  the  gov- 
ernment. The  necessity  for  compromise,  which 
had  dictated  the  three-fifths  clause  of  the  Constitu- 
tion of  the  United  States,  did  not  exist  in  Louisiana. 
Nor  was  Virginia  a  precedent.  The  great  question 
in  that  commonwealth  in  1830  was  the  basis  of 
representation,  and  the  convention  made  it  a  mixed 
basis  of  qualified  voters  and  taxation.  Was  not 
the  whole  purpose  of  those  who  advocated  the 
federal  basis  to  aim  a  blow  at  New  Orleans  ? 
Was  it  not  to  strip  her  of  her  just  political  influence 
in  the  State  ?  The  problem  in  Louisiana  was  to 
give  to  the  representation  of  equal  numbers  equal 
weight  upon  subjects  where  a  diversity  of  inter- 
ests existed.  The  federal  basis,  it  was  said,  had 
been  repudiated  by  the  American  commonwealths, 
for  it  had  not  been  adopted  by  them  in  their  do- 
mestic representation,  except  in  North  Carolina, 
Florida,  and  Virginia,  where  it  was  adopted  by 
the   Legislature. 

Eustis,  a  member  from  New  Orleans,  declared 
that   the   political  condition  of  the  State  was  too 

478 


The  Federal  Basis  as  a  Precedent 

artificial  for  it  to  think  of  departing  from  the  prin- 
ciple that  majorities  must  govern.  There  were 
two  distinct  races  in  the  State,  each  entitled  to  its 
rights.  In  reflecting  on  their  condition,  it  was  nec- 
essary to  conclude  that  numbers  alone  could  not 
safely  govern.  Government  by  mere  numbers 
would  be  obviously  unjust. 

The  discussion  of  the  basis  of  representation 
was  not  allowed  to  pass  without  a  defence  of  the 
federal  basis  on  the  ground  of  its  antiquity,  it  hav- 
ing been  made  the  precedent  for  apportioning  rep- 
resentation by  the  statesmen  of  the  Revolutionary 
period.  As  a  compromise  then  made  it  had  se- 
cured the  integrity  of  the  Union.  If  that  basis 
were  disturbed,  the  Union  would  be  shaken  to  its 
foundations.  Because  of  its  origin,  it  was  worthy 
of  application  in  the  commonwealths.  The  anti- 
slavery  agitation  at  the  time  of  the  Louisiana  con- 
vention had  a  powerful  effect  upon  its  proceedings. 
All  of  its  members  who  in  any  way  criticised  sla- 
very, or  who  proposed  any  civil  measure  which  did 
not  strengthen  slavery  as  an  institution,  were  look- 
ed upon  by  their  colleagues  with  suspicion.  So, 
too,  those  who  opposed  the  federal  basis  were  ac- 
cused of  deriving  their  arguments  from  Garri- 
son's Liberator,  and  as  being  disciples  of  Giddings 
and  John  Quincy  Adams.  Indeed,  one  member 
said  that  the  first  edition  of  the  speech  made  by 
one  of  his  colleagues  had  been  delivered  by  Gid- 
dings in  Congress  at  the  time  when  that  Represen- 
tative from  Ohio  had  opposed  the  bill  for  the  an- 
nexation of  Texas.    Giddings  had  said  that  if  each 

479 


Constitutional  History  of  the  American  People 

freeman  of  Texas  should  hold  five  slaves,  he  would 
exercise  the  same  influence  in  electing  federal  of- 
ficers that  would  be  exercised  by  four  Northern 
freemen.  If  he  held  fifty  slaves,  he  "would  have 
an  influence  in  electing  federal  officers  equal  to 
thirty-one  hard-working,  virtuous,  and  intelligent 
Democrats  of  New  England  or  New  York."  In- 
deed, had  not  Giddings  the  advantage  of  the  ar- 
gument, because  he  was  a  constant  opponent  of 
slavery,  while  the  delegate  from  West  Feliciana 
was  advocating  a  principle  which  he  was  not  will- 
ing to  apply  himself  .f*  What  was  the  justice  in 
such  a  procedure  ?  Could  the  people  of  Louisiana 
say  with  truth  to  their  Northern  brethren  that  they 
regarded  the  compromise  principle  in  the  federal 
constitution  as  wise  and  just,  but  deemed  it  odious 
and  unjust  when  proposed  for  adoption  in  their 
own  State  constitution  '^  For  Louisiana  to  con- 
demn this  principle  would  work  a  disastrous  effect 
on  the  interests  of  slavery.  It  should  not  be  for- 
gotten that  the  makers  of  the  new  constitution  for 
Louisiana  not  only  represented  its  sovereignty  as 
a  distinct  and  independent  commonwealth,  but  also 
represented  the  State  as  one  of  the  American  com- 
monwealths, and  therefore  were  vitally  interested 
in  upholding  the  basis  of  representation  established 
by  the  federal  constitution.  The  Northern  Aboli- 
tionists attacked  this  principle  of  representation. 
Already  one  of  the  outworks  protecting  slavery 
had  been  carried  by  storm  when  Congress  had 
opened  the  way  for  the  admission  of  incendiary 
petitions  for  the  abolition  of  slavery.      How  feeble 

480 


MassacJmsetts  and  Slave  Representation 

such  an  attack  compared  with  the  one  on  slavery 
by  a  sovereign  State  of  the  confederacy!* 

Such  an  attack  had  already  been  made  in  a  pe- 
tition from  the  Legislature  of  Massachusetts,  call- 
ing for  the  amendment  of  the  Constitution  of  the 
United  States  on  the  apportionment  of  represen- 
tation— that  thenceforth  slaves  should  not  be  in- 
cluded.! Should  Louisiana  join  in  this  crusade 
against  the  rights  of  the  South,  involving  not  only 
a  compromise  of  the  Constitution,  but  the  very  ex- 
istence of  the  Union  ?  Should  Louisiana  adopt 
the  arguments  of  Giddings  and  the  principles  ad- 
vocated by  Massachusetts  ?  By  refusing  to  apply 
this  principle  to  Louisiana  its  people  would  virt- 
ually admit  that  it  was  unjust,  and  they  would 
place  themselves  in  a  position  of  doing  to  others 
what  they  would  not  do  to  themselves.  The  for- 
eigners of  the  North  could  close  the  lips  of  the 
Representatives  of  Louisiana  in  Congress  by  quot- 
ing the  proceedings  of  the  convention  in  its  oppo- 
sition to  the  federal  basis.     Either  the  Southern 

*  Until  the  civil  war,  the  national  government  was  spoken  of 
as  a  Confederacy,  or  Confederatzott,  North  and  South  ;  oftentimes 
as  the  Union,  but  seldom  as  the  A'a^/^'^a/ government.  The  Fed- 
eral  idea  of  the  Union  was  always  uppermost  in  Southern  con- 
ventions (as  in  this  of  Louisiana),  and  generally  uppermost  in 
Northern  conventions.  Lincoln's  Gettysburg  oration  gives  a 
date  to  the  time  when  the  word  "  Nation  "  passed  into  common 
speech  as  descriptive  of  a  new  concept  of  the  Union  :  "  Four 
score  and  seven  years  ago  our  fathers  brought  forth  upon  this 
continent  a  new  nation,  conceived  in  liberty,  and  dedicated  to 
the  proposition  that  all  men  are  created  equal."  —  November 
19,  1863. 

t  Joint  resolution  of  the  Massachusetts  Legislature,  January 
16,  1844. 

I. — HH  481 


Constitutional  History  of  t/je  American  People 

States  had  no  right  to  insist  upon  the  maintenance 
of  this  basis  in  the  Constitution  of  the  Union,  or 
they  could  not  with  justice  and  propriety  object 
to  its  appHcation  in  their  domestic  representation. 
There  was,  indeed,  a  stronger  reason  why  the  basis 
should  be  adopted  in  a  slave-holding  State  than 
by  the  national  government.  The  authority  of  the 
State  to  abolish  slavery  could  not  be  questioned. 
The  general  government  had  no  right  to  interfere 
with  the  domestic  institutions  of  a  State.  If,  there- 
fore, there  was  no  desire  to  protect  slavery,  and  to 
protect  it  by  incorporating  this  principle  in  the 
federal  Constitution,  was  there  not  a  greater  neces- 
sity for  its  incorporation  in  a  State  constitution  .f* 
If  the  people  of  Louisiana  knew  nothing  of  slavery, 
the  arguments  ao^ainst  the  federal  basis  would  be 
irresistible ;  but,  for  weal  or  woe,  that  institution 
existed  among  them,  and  they  had  no  desire  that  it 
should  cease.  The  very  fact  of  its  existence  nec- 
essarily led  to  the  modification  of  the  laws  of  the 
State.  Every  motive  of  self-preservation  required 
that  the  legislation  of  the  State  should  be  adjusted 
to  the  existence  of  slavery. 

As  the  argument  continued,  some  sought  to 
show  that  the  adoption  of  the  federal  basis  would 
be  a  discrimination  between  the  poor  and  the  rich 
voters.  To  this  it  was  replied  that  the  poor  man's 
vote  was  equal  to  that  of  the  rich,  even  if  slaves 
did  enter  into  the  basis  of  representation,  for  any 
basis  which  increased  the  representation  of  the 
parish  would  confer  as  much  benefit  upon  its  poor 
as  upon   its  rich  inhabitants.      The  federal  basis 

4S2 


Efforts  for  the  Equali{ation  of  Representation 

would  not  diminish  the  representation  of  the  poor. 
As  an  exact  mathematical  equality  in  representa- 
tion was  impossible,  it  was  necessary  to  adopt  a 
system  approximately  equal.  Not  only  the  un- 
equal distribution  of  population  over  the  State, 
but  the  division  of  its  people  racially  as  bond 
and  free  compelled  the  adoption  of  a  system 
which  would  practically  secure  the  equities  of 
representation.  It  was  true  that  the  federal  basis 
would  have  some  tendency  to  increase  the  power 
of  the  country  parishes.  This  increase  in  the  rep- 
resentation of  the  country  districts  would  be  offset 
by  the  greater  city  representation  made  possible 
by  the  subdivision  of  the  city  into  wards  and  dis- 
tricts. By  such  a  subdivision  there  would  be 
practically  no  fractions  of  unrepresented  popula- 
tion in  the  city,  and  thus  the  city  would  have  an 
advantage  over  the  country.  The  city  would  have 
a  solid  representation,  while  in  every  country  par- 
ish there  would  be  an  unrepresented  fraction.  The 
aggregate  of  these  fractions  in  the  country  was 
politically  an  offset  which  compensated  the  peo- 
ple of  the  city  for  any  loss  incident  to  the  federal 
basis. 

The  discussion  of  this  basis  brought  out  many 
opinions  which  now  seem  almost  incompatible 
with  the  political  conditions  of  the  time.  There 
were  men  in  the  convention  who,  though  slave- 
holders and  eager  to  secure  as  much  power  as 
possible  for  slave  propert}^  declared  that  they 
would  never  consent  to  put  the  black  man  on  a 
footing  with  the  white  by  making  a  slave-holder 

483 


Constitutional  History  of  tlje  American  People 

and  his  hundred  slaves  equal  to  sixty  free  white 
citizens.  It  might  be  expected,  perhaps,  that  in  a 
slave-holding  State  there  would  never  be  opposi- 
tion to  the  application  of  the  federal  basis,  for  this 
basis  of  representation  was  the  evidence  not  only 
of  the  legality  of  slavery,  but  also  of  its  rights  to 
representation  as  property.  If  slaves  were  prop- 
erty— and  all  slave-holders  so  considered  them — 
then  the  argument  made  by  Webster  in  the  Mas- 
sachusetts convention  of  1820,  that  property  is  the 
basis  of  government,  applied  with  peculiar  force  in 
a  slave-holding  State,  and  political  consistency  de- 
manded that  the  federal  basis  should  be  the  basis 
of  representation  in  a  slave  -  holding  common- 
wealth. However,  after  an  exhaustive  debate  on 
the  applicability  of  the  federal  basis  to  the  people 
of  Louisiana,  on  the  2d  of  March  a  motion  to  ac- 
cept the  basis  was  defeated  by  a  small  majority — 
twenty-eight  to  twenty-two. 

The  failure  of  the  convention  to  apportion  rep- 
resentation in  that  State  on  this  basis  was  a  sig:n 
of  the  times,  an  intimation  of  impending  political 
changes.  It  was  of  itself  evidence  of  the  futility 
of  the  chief  compromise  of  the  national  Constitu- 
tion, and  of  the  wholly  unstable  basis  upon  which 
it  rested.  It  was  proof  that  American  democracy 
was  resting  upon  an  artificial  foundation.  Yet  at 
this  time  the  great  majority  of  the  people  of  the 
United  States  with  one  accord  were  declaring  in 
their  State  constitutions  and  their  laws  that  the 
primary  condition  of  maintaining  the  Union  was 
the  retention  of  the  federal  basis  of  representation, 

484 


All  the  Constitutions  Against  the  Negro 

and,  as  was  said  by  Calhoun,  that  slavery  was  the 
natural  condition  of  the  African  race.  Thus  far, 
at  least,  in  tracing  the  evolution  of  representative 
government  in  this  country,  we  have  found  no 
evidence  in  the  making  of  State  constitutions  that 
the  black  man  had  rights  which  the  white  man  was 
bound  to  respect. 

No  obstacle  in  the  way  of  adopting  the  federal 
basis  was  more  potent  in  this  convention  than  the 
inequalities  which  it  would  emphasize  among  the 
several  parishes  of  the  State.  The  relative  popu- 
lation, both  white  and  slave,  of  these  parishes  dif- 
fered. There  would  remain  unrepresented  fractions 
of  both  populations,  and  these  would  prove  as  ele- 
ments of  discord  in  the  commonwealth.  This  ob- 
jection was  a  natural  one.  The  Abolitionists  had 
long  before  pointed  it  out,  not  as  affecting  the 
rights  of  the  slave  population,  but  chiefly  as  dis- 
criminating against  the  white  race.  Much  of  the 
criticism  of  the  national  Constitution  and  many  of 
the  arguments  against  the  basis  of  representation 
were  made  not  because  that  basis  deprived  the 
black  man  of  his  rights,  but  because  it  discrimi- 
nated against  the  white  man.  As  viewed  through 
some  Northern  eyes,  it  was  a  basis  which,  by  in- 
cluding slave  representation,  created  inequality  be- 
tween white  men.  When  it  was  sought  to  apply 
this  principle  in  a  slave -holding  State  it  was  ob- 
jected to  essentially  for  the  same  reason.  There 
was  no  possible  solution  of  the  problem  of  equita- 
ble representation  for  the  nation  or  for  a  common- 
wealth so  long  as  slavery  continued  in  the  Union. 

485 


Constitutional  History  of  the  American  People 

On  the  14th  of  May  a  new  constitution  for  the 
State  was  agreed  to.  It  apportioned  representa- 
tion according  to  the  number  of  qualified  electors, 
giving  to  each  parish  at  least  one  Representative, 
and  providing  for  a  reapportionment  by  the  Legis- 
lature. In  1855,  ^^^  every  succeeding  tenth  year, 
the  Legislature  was  to  fix  upon  a  representative 
number,  and  each  parish  was  to  have  as  many  Rep- 
resentatives as  the  aggregate  number  of  its  electors 
entitled  it  to,  an  additional  Representative  being 
allowed  for  any  fraction  exceeding  one -half  of 
the  representative  number;  but  the  number  of 
Representatives  was  never  to  be  less  than  seventy 
nor  more  than  one  hundred.  The  elective  fran- 
chise was  limited  to  free  white  males,  of  age,  who 
had  been  two  years  citizens  of  the  United  States, 
and  had  resided  in  the  State  two  consecutive  years 
preceding  the  election.  There  was  no  provision 
for  the  inclusion  of  free  persons  of  color. 


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